Evidence.  Outline.
Prof. Noble, Fall 1997                       8.

Chapter 1. MODE AND ORDER OF PRESENTATION OF EVIDENCE.

A. CONTROL BY THE COURT
 FRE 102:  Purpose of the rules.
FRE 403: Exclusion of Relevan Evidence on Grounds of Prejudice, Confusion,
or Wast of Time.
      Evidence may be excluded if its probative value is substantially
outweighed by
1) the danger of unfair prejudice,
2) confusion of the issues, or
3) misleading the jury, or
4) by considerations of undue delay,
5) waist of time, or
6) needless presentation of cumulative evidence.

FRE 611: Control by court.  Court shall exercise reasonable control over
the mode and order of interrogation Ws and presenting evidence so as to
1) make the interrogation and presentation effective for the ascertainment
   of the truth
2) avoid needless consumption of time
3) protect Ws from harassment or undue embarrassment.

B. LEADING QUESTIONS.
FRE 611(c) Leading Questions should not be used on the direct examination
of a W except as may be necessary to develop the W's testimony.  Ordinarily
leading questions should be permitted on cross-examination.
      Leading Q - suggests W the fact that the examiner expects and wants
to have confirmed.  Qs calling for yes or no answers and Qs framed to
suggest the answer.
      Usually will be allowed on direct:
     1) if used to elicit preliminary or introductory matter;
     2) when W needs aid to respond b/c of loss memory , immaturity,
        physical or mental weakness, or
     3) when W is hostile and improperly uncooperative, an adverse party or
        a person identified with an adverse party.

Not permitted: misleading (do you still beat you wife?); compound;
argumentative (why you were driving so recklessly?), conclusionary (Q calls
for the conclusion, opinion); assuming facts not in evidence,  cumulative,
harrassing or embarassing.

Direct Examination.

Cross Examination.
Scope of Cross Examination.  The extent of X-examination is frequently a
matter of judicial discretion.  Leading Qs permissible as efforts at
impeachment.  Scope of X-ex cannot range beyond the subject matter of the
direct examination.  This restriction does not apply to inquiries directed
toward impeachment of W.

Role Judge and Jury.
Judge decided to ambit the evidence,  Jury decided  what weight the
evidence should be given.  It is up to the jury to judge the credibility of
a witness.
Judge decides the law applicable to the case,  and the jury decides the
facts.  Depending on the situation, it may be the judge who decides that
preliminary factual issue..

Organization of the Trial.
Presented plaintiff's case, than presented defendant's case.
.
Case flows:
1. Opening statement of the plaintiff (prosecutor - criminal)
2. Opening statement of the defendant (many courts allow D to reserve his
opening statement until the end of the P's case.
3.  Plaintiff's case: puts on his case in chief - present witnesses,
documents , other evidence to establish facts needed for him to prevail.
4.  Def's case: After P rests, D presents w, docs to disprove the elements
of the P's case and/or to establish affirmative defenses.
5.  Plaintiff's rebuttal: present add. witnesses, recall former witnesses,
new exhibits, but only to rebut the def's evidence.
6.  Def's rejoinder - D rebut evidence brought out in the P's rebuttal.
7.  Closing arguments: usually P goes first.
8.  P  has a last chance to rebut the d's closing remarks.
9.  Judge give instructions to the jury: explains the applicable law. Some
jurisdiction: judge may comment upon, or summarize the evidence.

Contin of
CROSS EXAMINATION.
United States v. McKenna:
Court's ruling was that defense counsel could not ask leading questions
until it was established that W was in fact an adverse and/or difficult  W,
at which point defense counsel would then be permitted to lead him.
Lawyer opted to rest the defendant's case at that point and  refused the
opportunity to cross-examine .  He never tried to proof that witness is
hostile.  Motion for new trial was denied.
Rule:  Judge may restrict asking leading questions on cross if it is not
established that W is hostile.
Notes:  Judge may choose to forbid the use of leading question on cross of
a friendly witness.  A father could cross-examine another codefendant (a
son) only with non leading questions.

Question if it is CROSS or DIRECT: who calls the witness, if you - direct,
if someone else - cross.

Credibility of witness: competency to recall, consistence -answers
difference on the same questions, bias witness, W was intoxicated,
convicted felony, perjurer, etc.
Contin. of the Scope of Cross-Exam.
10.
THE AMERICAN RULE
Douglass v. State:
Defendant with 2 other friends was convicted in murder, but trials were
separately.  Facts are not in a discussion.  While all three defendants
were in the county jail they wrote notes one to the other.  County attorney
discovered it and notes were photographed and then delivered to the
parties.  Court permitted defendant to be cross-examined in regard to notes
which were written and received by him while in the jail, when he had no
referred to the letters in his evidence in chief.  In direct examination
defendant didn't reefer to the notes above mentioned.   Under the Scope of
cross exam.  - since the notes were not referred to on direct, it was not
permissible for the state to question the D in regard to them on cross.
      Court discuss in the case English rule (minority - see above) and
American rule (majority) and laid down rule for Arizona (where case was
heard) - W may fully cross-examined and led by the adverse party upon all
matters pertinent the case , except exclusively new matter (Rush v. Frence,
Arizona law).  If  matter is a question of first impression - should follow
the English rule. However, in vier of the length of time during  which the
case Rush v. French  was the law of Arizona Court didn't attempt to broaded
the scope of the cross-examination, but didn't narrow it either. The
question objected in the case was admissible as bearing on the truth of the
defenses which had already been offered by Defendant.   But even though
verdict was sustained, and judgment was modified to change the punishment::
death not by hanging , but by lethal gas.
Notes:
      The fact that a party is not able to develop new material on cross
under American rule does not entitle the party to recall a witness    If
party wants to adduce new evidence in support of his defense, he could have
called the agents as defense witness.
      Judge still can allow to question W beyond the scope of cross, it is
under the judge's discretion.  a) Judge ruled the defense could qualify P's
expert as its expert also, as long as the defense was limited to proper
direct examination, and P was allowed to cross examine fully  b) J. allowed
D to examine P's witness  with regard to his familiarity with the product
and warning to the injured person, even though this was outside of the
scope of direct, this made unnecessary to recall  W later.

SUBJECT MATTER OF DIRECT.
United States v. Segal:
      CPA (Defendant) offered to his client(2nd Defendant) give a bribe to
IRS agent. (Witness). CPA also offered to IRS Agent to take a bribe of
20,000 ($5,000 would take CPA, the rest is fro IRS).   W used a tape
recorder on the meeting with CPA and for the telephone conversations with
both defendants.  Those recording were transcribed.  Question arised from
replaying the tapes and using transcripts on the direct and cross.
App. Court: said that the ruling of the trial court  was erroneous because
it unduly limited cross-examination.  Judgment reversed and new trial
ordered as to both defendants.  Appellate Court gave an opinion for the new
trial regarding the cross examination: in case if trial judge would rule
the trial in the same way as the first trial.
      1) Judge ruled that on cross D (defense counsel) would not be
permitted to replay tapes which had been heard during direct, cross have to
be conducted by use of the transcripts.  D wished to replay.  Appel.Court:
Court should consider the advisability of allowing replay, but there is no
error in using transcript, but if D requested - J can't restrict his right.
      2) Judge prohibited D from using transcripts or playing parts of a
recording which had not been heard during direct.  App. Court: limitation
unduly narrowed the scope of cross and hindered proper presentation of the
defense case.  If a matter has been raised on direct, generally cross must
be permitted.
      3) W was testified about statements made during a conference with D
when W used a body recorder, the tape was not played to the jury during the
direct.  Court didn't allow D to use recording or transcript regarding the
conference on cross.  App.Court: the scope is to be measured by the subject
matter of the direct rather than by specific exhibits which are introduced
at that time.-FRE 611 (b).
Notes:
Credibility - when it is matter:  J. didn't permit to D to show on cross of
government expert witnesses the fees the witnesses received for testifying,
or that two handwriting experts could differ in their opinions.  Ap.Court:
a witness credibility is part of what W establishes while testifying and
cross as to credibility will be fair game as part of cross.
Scope of re-cross-examination.
When new matters were brought out by the government of re-direct, D were
entitled to re-cross.
Scope of re-cross should be limited to the scope of re-direct.    Court
upheld a J's exclusion of questions relating to W's credibility ability
asked on  re-re-cross following re-re-direct in which credibility was not
bolstered
Chapter 2.  OBJECTIONS AND OFFERS TO PROOF.
      Objections made by the other party what is the other party's
responsibility of objecting to the evidence;  only after a timely objection
J. determine whether the evidence is admissible. FRE103(1): In case the
ruling is one admitting evidence, a timely objection or motion to strike
appears of record, stating the specific ground of objection, if the
specific ground was not apparent from the context.

Time for objection: Obj. must be timely.  If question alone makes clear
that the answer would be inadmissible - should be made before the W
answers.  If  the answer was not clear  or W. answers so quickly -no
reasonable opportunity to frame an objection - lawyer moves to have the W's
answer stricken  (Motion to strike) and to have the jury instructed that it
should disregard this evidence.  Courts do not wish to encourage parties to
withhold objections in the hope that an answer or exhibit may be favorable
and to raise an objection only when they are disappointed, but courts will
not impose unreasonable burdens on parties to object.
Time for Motion to strike:  can be made (1) at the earliest possible
opportunity after the ground for objection becomes apparent (or it is
considered waived) Terrell v. Poland or
(2) may be timely even if made at the close of the case when there is no
prejudice because of the delay Benjamin v. Peter's Farm.
Pretrial objections can be made:
      In limine objection -  objection can be made pretrial or during a
trial before a witness is called or evidence is offered .  In limine
meaning at the threshold. Court needs not rule on an objection when it is
made early, but an early motion may put J. on notice of a possible problem
and can cause J. to instruct counsel not to mention certain evidence until
the judge rules on the objection.
Luce v. US:  to raise and preserve for review the claim of improper
impeachment with a prior conviction, a defendant must testify.  Even if J
made a ruling on the Motion in limine,  in order to appeal the evidence had
to be raised on the trial.

      Objection considered waived  if an objecting counsel introduces
evidence (elicit testimony) similar to the one he objected to.

A.1.  GENERAL AND SPECIFIC OBJECTIONS:
      FRE 103(a)(1) allows the appeals court to consider an evidentiary
ruling only if the opponent made a timely objection "stating the specific
ground of objection".

Een v. Consolidated Freightways:
Auto accident.  P collided with D's truck .  P claimed that accident
occurred in the n/b lane and D claimed that - s/b lane.  D called a sheriff
f as W and asked for his opinion. W said that accident occurred in the west
lane.  P objected stating “incompetent, irrelevant, immaterial, calling for
speculation, guess and conjecture, obviously invading the province of the
jury, calling for a conclusion."  J. overruled and Jury returned the
verdict for D. (may be on the grounds of the W's testimony).  P appealed.
      Held: Affirmed.  objections to evidence must be specific, and no
reversal can be had except upon the ground specifically stated.

      If objection is general -  a trial judge can overrule or sustain ,
the trial judge's ruling on a general objection, which ever way the judge
decides, will rarely be reversed on appeal.  When the evidence is not
relevant to any issue in the case, a general objection that it is
immaterial and irrelevant  is sufficient to preserve right of review
Bridges v. City of Richardson.

      If objection is specific :
1) J. overrules, the appellate court will reverse (unless the error is
harmless).
2) if the objector picks a wrong ground and J. overruled, objector will
lose on appeal even if there was a different specific ground . Party's duty
to select the correct ground.
On evidentiary issues Judge is  almost always right.
3) if the objector picks a wrong ground and J.  sustained : some Courts
-sustain the J's ruling on the grounds that the result was correct even
though the reason was wrong, other Court - reverse on the theory that the
proponent, had he known of the valid ground, could have offered different
evidence to support the point (cure the defect).

A.2. CONSEQUENCES OF FAILURE TO OBJECT WITH SPECIFICITY.
Owen v. Patton:  P sued Barowner for a battery allegedly committed by a Bar
bouncer,  D denied battery or having a bouncer.  On trial D's counsel in
its cross of P tried to bring up a fact that P was friends with convicted
criminals.  P's counsel approached a bench but didn't register formal
objection.  At this point J. interrupted and warned D's counsel.
Nevertheless sometime after D's att. pursued this line again.  Again, P's
att. didn't object even though J. warned D's att. again.  This happened a
few times, but P's att. never formally objected.  Jury returned the Verdict
for D and P appealed claiming this line of questioning to be reversible
error.
      Held: Affirmed. Without an objection, a motion to strike, a request
for special instructions or a motion for mistrial, the court was not called
upon to make a rulings that could result in error for failure to
accommodate the P's request.  Court is not justified in granting a new
trial even though believed that D's att. 's tactics bordered on misconduct.
Without an objection and a proper request for relief, the matter is waived
and will receive no consideration on appeal absent plain error.
      In any case even if it was an error it was harmless.

A.3. PLAIN ERROR.
      If objection was not made, the party normally can not make any claim
on appeal that the evidence was wrongfully admitted.  Exception: "plain
error". Plain error is the error which affecting substantial rights.   An
error will not lead reversal if it is "harmless"; conversely, an unobjected
error may nonetheless lead to reversal if it is "plain".  FRE103(d) Nothing
in this rule precludes taken notice of plain errors affecting substantial
rights although  (even if) they  were not brought to the attention of the
court.

      Harmless error standard: (error in admitting an evidence)- error that
didn’t affect substantial rights.    Different  standards for determining
harmless errors:
a) Constitutional error is never harmless. Chapman v. California.
b) In a criminal case, the appellate court must be certain that error is
harmless beyond the reasonable doubts or reverse.  US v. Lamberty.
However, some appellate courts are less demanding even in criminal cases:
Error could be harmless if it  is highly probable that it did not affect
the judgment.  US v. Urbanik.
c) In a civil case, error is harmless if it is more probable than not that
jury verdict was not affected by the error. Haddad v. Lockheed Corp.

Court has to decide is error harmful or harmless.
If court find that error is harmful, court is obligated to reverse.  Court
can affirm the Judgment even if Court finds that error is harmful but
conclude …..????

A.4. OFFER OF PROOF.
Offer of Proof: If  Judge sustains an objection, the proponent of the
evidence must make an "offer of proof" if he wishes to be able to contend
on appeal.  Offer of proof must consists of two parts: (1) a description of
the evidence being proposed; (2) an explanation of how that evidence
relates to the case (if it is not clear from context).Exm: If W were
permitted to testify, he would state that  X told him....  This evidence is
relevant because .it shows ...., and thus impeaches the testimony W has
previously given in which he said ...
      Only by offer of proof can the app. court be completely informed of
what the offered evidence would have been.  FRE(a)(2):   app. court will be
permitted to consider a ruling excluding evidence only if "the substance of
the evidence was made known to the court by offer".
      Offer of Proof is required only on direct exam., not on cross.,
because:  the cross-examiner will not know what W would testify and answer
of W will be obvious to everyone, because the question was probable
"leading".
      Offer of proof normally be made outside the presence of the jury,
since the whole point of objection is Jury will not hear the answer.
103(c): requires where practicable that the offer of proof be made outside
of the jury's hearing.

Methods used to make an offer of proof:
1.    Attorney speaks for the record concerning the anticipated content of
   the excluded testimony.
2.    Attorney introduces a statement, written by the attorney making the
   offer of proof, which contains what the attorney believes the witness
   would have said had the W be allowed to answer the question. Attorney
   should mark the document as an exhibit and introduce it into the record
   so that it may be properly identified on appeal.
3.    Att. Provides a written statement, signed by the witness, that
   contains what the W would have testified.
4.    Court excuse the jury and allow the attorney to examine the W in
   question and answer form. FRE 103 (b) allows the court to require that
   the proponent make the offer in question-and-answer form.

U.S. v. Winkle:
Medicare fraud case.  Convicted D appealed from try court's ruling to
exclude as hearsay his account of conversation with his salesman.  D was
given an opportunity to describe the evidence to J. without Jury,  D
merely stated  he would testifies as to his version of conversation without
giving details.
Held: Affirmed.  FRE 103(a)(2) .  Merely stating that D wanted to present a
different version of conversations was not sufficient to make known to the
court the substance of the evidence.
Offer of proof is necessary to preserve the issue for appeal, however :
Beech Aircraft v. Rainey: In this case although counsel didn't explain the
evidentiary base of his argument as thoroughly as may be desired, the court
was satisfied that the counsel substantially satisfied the requirement of
putting the court on notice.

B. CONTEMPORANEOUS OBJECTION.
Hackenson v. City of Waterbury:
P stepped into a hole in the pavement located  near the  trolley tracks.,
fell and was injured.  By statute, D is  not liable for a defect within
eight inches of a trolley rail.  Jury found that the hole was not located
within 8 inches area,  and  entered the verdict for the defendant.  On P’s
amended complaint, direct  and cross said that the whole was located within
8 inches.  Def. had rested his case.  P’s att called P on the rebuttal
where P said that the whole was 28 inches far from the rail.  After the
answer Def objects.  Court sustained the objection to the question, ruling
it was not proper rebuttal and denying P's request to reopen the P's case
to permit the inquiry.
      No motion to strike,  P gave an answer before D's objection to the
question.  P's appel claim is :  in the absence of Motion to strike,  the
answer remains in the record and constituted evidence that the hole was
more than eight inches from the rail, which is sufficient to warrant the
verdict.
      Held:  Plaintiff's appeal denied, Verdict for D affirmed.
      the objection must ordinarily be made as soon as the question is
stated, and before the answer is given, unless the inadmissibility was due
to some feature of the answer.  However, it must have a reasonable
interpretation.  Its object is to prevent a party from knowingly
withholding his objection, until he discovers the effect of the testimony,
and then if it turns out to be unfavorable to interpose his objection.
Record shows no violation of the rule as interpreted.
      Rule: If the question is put and the answer given in such rapid
succession that the party objecting has not fair opportunity to state his
objection, it is the duty of the court to entertain the objection when
thereafter promptly made.
      Even if the absence of a motion to strike out the answer, no
testimony indicating the hole was not within eight inches from the rail is
available in support of the jury's verdict.   Prof:  No rebuttal: no new
issue, W - is a party to the action.

Prof:  If evidence excluded by the court,  why prosecutor should care about
the appeal?
1.    Because case can be reversed.  Prosecutor will need this evidence on
   a new trial.
2.    In a Fed. Court  Prosecutor can take an antilakatory??
3.    When offer of  proof is made, you can show to Court that the ruling
   of the evidence was wrong and why it is wrong.
Chapter 3. COMPETENCY.
A.  Competency v. Credibility.
Competent witness -witness  possesses the qualifications necessary to give
testimony.
Incompetent: UNDER THE COMMON LAW, not Federal rules, who did not believe
in a supreme being (agnostics and atheists),convicted felons, persons with
an interest in the outcome of the litigation (parties),young children and
insane persons.
Credibility - if witness is presumed competent and the common-law ground
for disqualification are today at most factors that go to the W’s
credibility (not to whether he may give testimony at all).
FEDERAL RULES:
Witnesses will be incompetent to testify only for 2 reasons:
(1) Lack of personal knowledge   FRE602: "W may not testify to a matter
unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter"
(2)  If the witness will not solemnly promise to tell the truth - will not
take an oath, court will not hear his testimony. FRE603: "before testifying
every witness shall be required to declare that the witness will testify
truthfully, by oath or affirmation"

Mental incapacity or immaturity:
Young or insane witness will not be prevented from testifying if  J. is
convinced that he has relevant first-hand knowledge and understands an
obligation to tell the truth.  Even if W was intoxicated or under the drugs
when he witnessed an event, he will be permitted, under the federal
approach, to testify about it.

Diversity cases:
Occasionally federal courts may be required to follow the state rule on
competency . State Law will apply. FRE 601:  Every person is competent to
be a witness except as otherwise provided in theses rules.  However, in
civil actions and proceeding, with respects to an element of a claim or
defense as to which State law supplies the rule of decision the competency
of a witness shall be determined in accordance with State Law.
      In cases where State Law applies State Competency rules govern.

U.S. v. Bedonie:
In a murder prosecution  (killing of police officers Navago territory after
a boni fire party ) government witnesses made a lot prior of inconsistent
statements, which were even inconsistent with each other.  On appeal D
argued that when W lies so much it is no longer an issue of credibility but
the issue of competency.
Held: conviction affirmed.  FRE takes a broad view incompetence (even
insaying or minors can be competent).  "Moral depravity"  as grounds for
incompetence is an old theory and is no longer valid.  W - is competent,
but there is a question of his credibility.

Other rules may affect competency of the witness: e.g. professional
responsibility of lawyers may stop lawyers from testifying.
Intoxication when testifying:  when W is drunk at the witness stand, J. can
stop his testimony, let him sober up and continue his testimony on the next
day. US v. Hyson.

A.1.  COMPETENCY OF JURORS.
FRE 606:
(a) Juror may not be called to testify in the trial where he is a juror.
The party has a right to object to such testimony.
(b) In a post verdict inquiry juror may not testify as to (i) any statement
made in the jury deliberation or (ii) anything that may have affected any
juror's mental process in making the decision, EXCEPT that juror may
testify as to (i) any extraneous (outside) prejudicial information was
improperly brought before the jury or (ii) there was improper outside
influence on the jury. If cannot testify, cannot submit an affidavit to
that effect.

Tanner  v. US.  In a mail fraud conviction, D learned that jurors drunk
beer during the lunch breaks and were sleepy during the trial. P's
requested evidentiary hearing concerning drug and alcohol abuse by jurors
during the trial but were denied it and appealed from that ruling.
Held:  Affirmed.  FRE 606(b). Alcohol abuse cannot be considered "outside
influence" within the meaning of the rule.  Reasons for the holding and
606(b):  Postverdict inquiries in jury decision making process can
undermine the whole institute of trial by jury.  D had a vor dire (jury
selection) process plus could object during the trial.

Prof. What should control a Jury Deliberation?
See cases: Wright v. U.S.  559 F Sub 1139 , East.Dist. of NY

Smith v. Brower, F Sub 482 1978:  Court examined racial bias, but it didn’t
influence on the verdict.
 If  there is a claim, there is a Hearing re Juror.  App.court may reverse
the case on the basis of  Juror’s Hearing.

A.2.  COMPETENCY OF JUDGE.
FRE 605. Judge may not testify in trial over which it is presiding.  No
objection is necessary.
      Note that in the case of jurors, the objection to their testimony has
to be made, but in the case of judge, his testimony is prohibited outright.

A.3  DEAD MAN STATUTE
Rule of competency which relates to civil suits in which one of the parties
is deceased.  These statutes vary from state to state, but they all attempt
to "equalize the opportunities of proof in litigation involving a decedent
and survivor where the subject matter of the suit is a transaction or event
that occurred when both were living."
      Extreme form: statute prevent the survivor from testifying at all
about the transaction between him and the decedent. Zeigler v. Moore (see
below)
      More liberal: permit the survivor to testify, but equalize his
advantage by allowing the decedent's estate to introduce hearsay statements
made by the decedent or other evidence that would otherwise be
inadmissible.
      No Federal  Dead Man's Statute. Federal Rules do not directly limit a
survivor's ability to testify against a decedent.  However, if the federal
suit is brought in diversity, and the state whose substantive law a applies
has a Dead Man's Statute, the federal court is required by FRE 601 to honor
the state Dead Man's Statute.
      Majority of States now don’t prevent survival from the testimony.

Zeigler v. Moore:  Auto accident.  D died a few years later.  At the trial
P tried to introduce: (i)sheriff's testimony as to D's accident report;
(ii) P's own testimony as to the accident.  Court excluded everything and
app.court affirmed.
      Held: 1)  Transaction for purposes of Dead Man's Statute includes
torts.
2)There is no unfair prejudice to plaintiff,  because there is still
factual evidence available: skid marks, eyewitnesses, etc.

B. FOUNDATION COMPETENCE
FRE 603: "before testifying every witness shall be required to declare that
the witness will testify truthfully, by oath or affirmation"
B.1. OATH
There is no standard required for form of oath, it could by any declaration
that complies with FRE 603.

B.1.1. Religious convictions:
Ferguson v. Commissioner: In a tax case, a plaintiff-appellant refused to
take an oath or affirmation b/c of her religious beliefs (she was against
using words "swear" or "affirm"). Instead, she suggested a following
statement:  I "declare" that the facts I am about to give, to the best of
my knowledge, are true, correct and complete,  but the judge refused and
dismissed the case.  She also agreed to add a sentence which would subject
her to penalties of perjury if she lies.
Held:  Reversed. Judge should have accommodated her religious beliefs.  Any
statement that impresses on the mind of W his duty to tell the truth is OK.
But Judge has to make clear to Witness his responsibility for the perjury.
Note 1: If W refuses to swear or affirm altogether, without any
substitutes, J. may disallow his testimony.  US v. Fowler.
Note 2:  Oath  requirement may be waived if testimony without oath was not
timely objected to.

B.1.3. Children
Capps v. Commonwealth:  the appellant was indicted for the offense of first
degree sodomy by engaging sexual intercourse with an infant less than 12
years of age.  D claimed that court permitted the prosecutrix, 51/2 year
old child, to testify.  Judge permitted a voir dire of W and her social
worker out of the hearing of the jury in order to determine the competency
of the prosecutrix to testify.
      Held: Judge decides competency regardless of the effectiveness of the
testimony.  It is not trial judge's business to weigh the effectiveness of
the testimony in determining the competency of the witness.   The standard
of competency of the child witness by which the discretion of the trial
judge is to be guided: duty of the trial court to carefully examine W to
ascertain whether she is sufficiently intelligent to observe, recollect and
narrate the facts and has a moral sense of obligation to speak the truth.
      The judge having found her competent to testify, the jury was
entitled to weigh her testimony as it would the testimony of any other
witness.
Notes:
1. Child doesn’t have to know the meaning of the oath to be considered
competent to testify.
2. Child presumed competent over a certain age (different is states),  At
common law - 14 years old, but most states set the age at ten or twelve
years.
3. If a child witness is found incompetent to testify, the child's
statements might still be admissible under the excited utterance exception
to the hearsay rule.

B.1.4.  The competent incompetent.
United States v. Phibbs:  Drug related prosecution.  D argued that
Government's witnesses (co-defendants) were incompetent to give testimony
because of the mentally incapacity.  One W had been previously found
incompetent to stand trial and spent time in mental hospital.  The other W-
his treating psychiatrist sent an affidavit that he could not assist his
own counsel at his own trial because of his mental problems.
       Held:  As long as a witness appreciates his duty to tell the truth,
and is minimally capable of observing, recalling, and communicating events,
his testimony should come in for whatever it is worth.  It is then up to
the opposing party to dispute the witness' powers of apprehension, which
well may be impaired by mental illness or other factors.  As the court  was
persuaded , W were at least minimally capable of offering reliable evidence
(trial court conducted an evaluation of these W and thought that they were
capable to testify), the possible weaknesses in their testimony went to its
credibility, and so were to be assessed by the jury.

B.2. PERCEPTION.
FRE602:  Lack of personal knowledge. "W may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter"   Evidence to prove personal knowledge
may, but need not, consist of the witness' own testimony.  This rule is
subject to the provisions of rule, relating to opinion testimony by expert
witnesses.

3 WAYS TO PROVE A PERSONAL KNOWLEDGE:
1. Witness’s own testimony “I was there, …”
2. Physical evidence: bloody glove, video -which tight to the subject
matter of litigation
3. Testimony of others
      There is a lowest standard applied: whether a reasonable jury believe
when presented with evidence that W has personal knowledge.

B.2.1. Witness' Own Testimony.
US v. Davis : D was convicted for illegal possession of firearms.  His
conviction in part was based on the testimony of Houston PO who testified
that the arms in question were released to D from HPD on certain date.  D
objected on the grounds of lack of personal knowledge, but objection was
overruled.
      Held.  Affirmed.  FRE 602 places the initial burden of proving
personal knowledge on the proponent of testimony.  In this case the
Government showed relationship between D , HPO and the Room at HPD where
the guns were kept.  Thus the Government complied with initial burden.
      When question of admissibility you can voir dire W outside of the
Jury room.
Notes:
1. FBI officer can testify to the jury on the basis of charts summarizing
testimony of government witnesses, because he had knowledge of underlined
testimony. US v. Lemire.
2. Jury can believe that witness had personal knowledge of events in
question even though he was on drugs during that time. US v. Hickey.

B.2.3. Lack of Personal Knowledge.
Gladden v. State:  In a drunk driving prosecution State called a sheriff
who testified that he chased D's car, that D's car was driven in "wobbly"
manner and  D was drunk. D objected to sheriff's testimony  that D was
drunk, but objection was overruled.
      Held:  Where it is proper to permit non expert opinion evidence, W
may state his opinion without first detailing the facts on which he basis
such opinion,  where the matter testified about is not of a complex nature.
 Intoxication is such a matter.  Note however that such opinion must be
based on W's personal observation. (Here , sheriff saw D's driving like a
drunk and based his opinion on personal observation).
Notes:
Montgomery:  W is incompetent to testify under FRE 602 only of Court finds
that W had actually perceived or observed that which he testifies to. So,
even slightest possibility of actual perception is sufficient to satisfy
the personal knowledge requirement.

B.2.4.  Contradicted Foundation.
Mailie v. National Railroad Passenger Corp:   Slip & Fall ,
Workcompensation case. This is an action under the Federal Emp's Liability
Act.  Plaintiff suffered injuries while in the employ of D. D. moved for a
new trial,  motion was dismissed.
      Dr. Smith testified for P concerning P's surgery. On cross D
confronted with the fact that P was not listed as present in the
hosp.records.  W - Dr. admitted that he could not be 100% sure that he had
been present at the surgery, although he remained firm in his belief.  On
the following day D moved to strike the testimony.
      Held: Because the weakness of W's testimony had been revealed to the
jury, the jury could properly determine how much weight to give it.  FRE
602 requiring W to establish personal knowledge does not mean that W has to
be absolutely certain. mean that W has to be absolutely certain.
Notes:
1. Judge  can exceed the testimony only when no reasonable jury could
conclude that W has personal knowledge. US v. Owens
2. "Imagined" is not sufficient foundation for personal knowledge according
to FRE 602.
US v. Lanci

B.3. RECOLLECTION
B.3.1. FRE 612: Writing Used to Refresh Memory:
If Witness by looking to the notes would  remember what happened, You don’t
show the notes to Jury,  the testimony is evidence by itself.
Where W consults the refreshing document DURING THE COURSE OF TESTIMONY  the
non-calling party automatically gets three rights: a) to  inspect  document;
2) to cross-examine W based on the document, 3) introduce into evidence  the
portions of the document that relate to the testimony of W (if it  satisfies
some hearsay exception).Where W consults the document BEFORE THE  TESTIMONY,
it is part of pretrial preparation ,  the  opposing  party  gets  the  above
rights only if the court in its discretion determines it is necessary.

Henry v. Lee:  It is sufficient if  a  man  can  positively  swear  that  he
recollected the fact, though  he  had  totally  forgotten  the  circumstance
before he came into Court.   If upon looking at any document he can  so  far
refresh his memory to recollect circumstance it is sufficient, It  makes  no
difference that the  memo  was  written  by  himself,  for  it  is  not  the
memorandum that is the evidence, but the recollection of W.

Baker v. State:  D charged with robbery and murder.  Before  victim  died  D
was brought before victim, and victim told officers B and H that D  was  not
his assailant.  PR was done by H.  At the trial officer B is a  witness  for
prosecution.  D's lawyer attempts to show B the PR to refresh his memory.
      Held: On appeal D was entitled to try to refresh  memory  of  W,  even
though B did not prepare report.  All that is required is that the  document
ignite the flash of accurate recall.
Notes:
1. In minority of jurisdiction W  may  use  her  own  memo  to  refresh  her
memory, if it was made at or near the time when the facts were fresh in  her
memory.
2. General rule: any protections on the document are waived if document  was
used to refresh the recollection of W.  But J. can  order  not  to  disclose
them.
3. If documents used to refresh the recall. before  testifying  -  D  always
should have been  permitted  to  introduce  the  writing.   If  at  trial  -
documents are always subject to examination.  J has discretion to permit  or
to restrict discovery of documents used to refresh prior to trial.

B.3.2. RECOLLECTION RECORDED.
If Witness even by looking at the notes would not remember,  you  can  offer
this notes into evidence but only by  reading  them  to  Jury,  the  opposed
party can request that the notes be actually given to Jury.    You read  it,
because you don’t want to attach it.
FRE  803(5):   provides  a  hearsay  exception  for  memorandum  or   record
concerning  a  matter  about  which  W  once  had  knowledge  but  now   has
insufficient recollection to enable him to  testify  fully  and  accurately,
shown that it was made or adopted by W when the  matter  was  fresh  in  the
memory  and  to  reflect  that  knowledge  correctly.   If   admitted,   the
memorandum or record may be  read  into  evidence  but  may  not  itself  be
received as an exhibit unless offered by an adverse party.

Untied States v. Williams:  Defendant was convicted for cashing government
checks bearing forged endorsements, and he appealed.  Court of App held
that:  Defense: D didn’t have a knowledge that checks were forged.
      Held.  Affirmed.
      (1) fact that government agent wrote in his own words a statement of
prosecution W and which was signed  by prosecution W did not render such
statement inadmissible as a record concerning matters about which W had
knowledge but had insufficient recollection at time of trial to enable him
to testify fully and accurately;
      (2) W'  prior sworn statement concerning his conversation with D was
admissible as a recorded recollection, in view of fact that  W claimed no
recollection of certain features of his conversation with  D, which
features had been included in statement adopted by witness and given to
government agent, and
      (3) fact that  prosecution  witness,  on  cross-examination,  disputed
portions of statement which had previously  been  signed  and  sworn  to  by
witness and  given  to  government  agent  did  not  render  such  statement
inadmissible as a record concerning matters about  which  witness  once  had
knowledge but about which witness had insufficient recollection at  time  of
trial to enable him to testify fully and accurately, in view  of  fact  that
prosecution witness continued to agree that the statement  was  accurate  in
general;   matters  brought  out  in  cross-examination  did  not   preclude
admissibility of statement, but went only to the  weight  to  be  given  it.
Federal Rules of Evidence, rule 803(5),

Notes:
1. Fresh in memory - reasonable time.   Minority,  traditional  law:  at  or
near the time.  US v. Senak:admitted a statement made in 3 years  after  the
events.  Dickinson Supply v.
Motana-Dakota:  it should be exercised on a case-y-case basis.

B.3.3. Hypnotically Refreshed Memory. - WAS NOT DISCUSSED IN A CLASS
People v. Zayas: Defendant was convicted of murder, and he appealed.  The
Appellate Court affirmed.
      Held : Reversed and remanded.
       (1) Witness other than defendant himself may not offer testimony to
extent that it is enhanced through hypnosis.  Hypnotically induced
testimony, other than that of defendant himself, was per se inadmissible
      (2) error from admission of detective's hypnotically induced
testimony more closely recalling license number of vehicle observed near
scene of shooting was prejudicial and  warranted reversal of murder
conviction.

Notes:
1.  Per se rule against posthypnotic testimony is unconstitutional.  Rock
v. Arkansas- hold by US Supr. Court, so it is a constitutional decision
which binding state and court's decision.  D, which underwent the hypnosis
was allowed to testify on her own behalf.
2.  Factors which court should consider in reviewing hypnotically refreshed
testimony: 1) hypnosis was used for refresh. recollection. or as part of
therapy-more reliable; 2) whether W was subject to suggestion; 3) a record
of the session was kept; 4) the hypnotist was sufficient qualified; 5)
whether there is another evidence support, 6)expert testimony offered by
the parties as to the procedures used in the case. Borawich v. Shay:
applying these factors court excluded P's hypnotically refreshed testimony.

B.4. COMMUNICATION. - WAS NOT DISCUSSED IN A CLASS
B.4.1. Interpreters.
Watson v. State:  offender, and he appealed.
      Held : Reversed and remanded.
      (1) where State's case consisted primarily of testimony of  victim's
husband, who had been incapacitated by a stroke: unable to speak,
expression "uh-huh" ;  couldn't  understand questions; impaired ability to
hear.  Testimony didn't show that W  understood obligation for oath, W's
responses were contradictory due to his inability to distinguish or
otherwise communicate negative as opposed to affirmative answers.   All
above constituted reversible error.
      (2)   Interpreter for such witness needed to be qualified before she
could be permitted to interpret for such witness in murder prosecution.
Notes:
1. FRE 702: the interpreter must possess sufficient "knowledge, skill,
experience, training, or education.  FRE 604: Interp. subject of the
provisions of these rules relating to qualification as an expert and the
administration of any oath or affirmation to make a true translation.
2.  Translator didn't take a standard W's oath, but swear.  No error as per
US v. Armijo
Chapter 4. RELEVANCE.
Any evidence which relates to the same parties place, time would be
relevant.  Problem only if different time, party...
2 Components of Relevancy:
1. Focus if evidence make fact more probable or less probable then it would
be without the evidence.
2. Facts to be proven of consequence to litigation.

      Relevance issues decided by Judge, he decides if this evidence can be
received by Jury.  Judge decides probative value of the evidence, does this
piece of evidence have probative value to the matter of litigation.
      Jury have to decide if evidences were sufficient to establish a case.
      Relevance focuses on whether Jury can look at and examine the
evidence..
      Sufficiency focuses on whether after all is done, the Jury concludes
that the ultimate issue has been proved.
FRE 401:  Relevant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.
FRE 402: All relevant evidence is admissible, except provided by Const.of
US, Act of Congress, by FRE, etc. Evid. which is not relevant is not
admissible.
FRE 403: Relevant evidence may be excluded if its probative value is
substantially (it can be the same level or even more but not a lot more)
outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

A.  ANY TENDENCY.
Douglass v. Eaton Corp. -  Similar occurrences case.
       Black employee who was discharged for violating shop rule against
fighting filed claim of discriminatory discharge against employer.  After
judgment was entered on jury verdict for employee, employer moved for
judgment notwithstanding verdict or for new trial.  Judge granted motion.
Employee appealed.  Substantive Law in here: State Discrimination Law.  P
has to prove that her discharge was based on race  She has to bring
evidence proving Individual attack which occurred previously.  After
looking on all of these factors, you can decide that is more probable than
not..
      Held: Reversed and remanded.
      (1) For purposes of discriminatory discharge claim  by black employee
who was terminated for violating shop rule against fighting, evidence that
in prior fighting between employees at plant shop enforced the rules mostly
against black employees was relevant and should not have been excluded .
      (2)District court has broad discretion in determining whether
evidence is relevant, and Court of Appeals may only reverse ruling in that
regard if district court has abused its discretion.  FRE 401.  In
determining whether evidence is relevant, district court must not consider
weight or sufficiency of the evidence.  FRE401.   Even if district court
believes evidence is insufficient to prove ultimate point for which it is
offered, it may not exclude the evidence if it has even the slightest
probative worth.  FRE401.

Notes:
      1. Distinction between relevance and sufficiency: to be relevant it
is enough that the evidence has a tendency to make a  fact more or less
probable than it would be without the evidence. It is up to the Jury to
weigh the evidence and to determine whether the entirety of the evidence is
sufficient to prove a point.
      2. Evidence can be excluded on grounds that it is "too remote": W saw
the P driving without a seat belt two years before the accident.
      3. Fact is relevant if another fact exists: the proponent of evidence
which is conditionally relevant must provide enough evidence to support a
finding of the conditional fact . The Judge has discretion to require proof
of the condition in advance or to admit the evidence of the fact subject to
"connecting up" by later proof of the condition.
FRE 104(b).
      4. Failure to introduce evidence can be admissible as relevant
evidence.

B. OF CONSEQUENCE.
US v. Hall:  Drug Enforc. Admin. agent's testimony, the sole purpose of
which was to respond to D's suggestion that Government had been unable to
obtain corroborating physical evidence against  D because D was innocent of
drug offenses charged, offered to show that DEAdmin. routinely utilized
procedures other than controlled buy and seizure method in order to develop
criminal narcotics cases lacked substantial relevance to any matter in
issue and was therefore not admissible where he testified to no facts
bearing on prosecution of defendant or on investigation leading to such
prosecution.  Comprehensive Drug Abuse Prevention and Control Act of
1970,The purpose of rebuttal testimony is to explain, repel, counteract, or
disprove the evidence of the adverse party.  Witness’s testimony was not
relevant.  W was a quasi expert, didn’t have personal knowledge, W’s
testimony didn’t make the evidence more probable or not.
Note:
Garland v. Herrin: Role of the substantive law in determining whether
proffered evidence tends to prove an issue "of consequence": evidence of
parent's emotional distress over the murder of their daughter held
irrelevant because "NY Law does not permit a bystander to recover for
psychic injury for harm inflicted on another.

C. COMMON APPLICATIONS.
Analyses:
1. Does offered evidence have any tendency to make the fact more or less
probable?
2. Is the fact that is offered to be proved of consequence to the
litigation?
3. Evidence may still be inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice, etc.

C.1.  Admission by Conduct.

Flight and cash.
US v. Hankins: Defendant was convicted of armed bank robbery, use of a
firearm during a crime of violence, and escape from federal custody, and he
appealed.
      Held :  Affirmed and remanded.
      (1) Evidence that defendant spent four of ten twenty-dollar "bait
bills" taken in bank robbery within 48 hours of robbery, escaped from
custody following his arrest, and drove vehicle similar to one seen
circling the bank prior to robbery was sufficient to support armed bank
robbery conviction.
      (2) evidence that defendant escaped from custody following arrest for
robbery was admissible to establish consciousness of guilt.  absent showing
that defendant escaped because he felt guilty about some other offense.
Each element of crime may be proven by circumstantial as well as direct
evidence.
      Admissibility and probative value of flight evidence:  depends upon
the degree of confidence with which four inferences can be drawn: 1) D’s
behavior to flight, 2) from flight to consciousness of guilt, 3) from
consciousness of guilt to cons-ness of guilt concerning the crime charged,
4) from cons. of guilt to the crime charged to actual guilt of the crime
charged.
Note:
1. Flight to avoid conviction is admissible, it might be prejudicial, but
prejudice is very small..  Evidence of  consciousness guilt can be
prejudicial and is subject of exclusion if the probative value of the
evidence is diminished by a plausible alternative explanation for the D's
conduct.
2. Possession of cash by a criminal defendant can be admissible: 4 hours
after the crime D was in possession of seven $20 bills, the identical # and
denomination of the bills which had been taken  the night before.
      Unfairly prejudicial -
C.2.  Poverty of Wealth.
Punitive Damages.
Hall v. Montgomery Ward & Co.:  Employee brought action against employer
for mental anguish caused by threatening language by employer's
representative in investigating theft of employer's property.  Court
granted employer's motion for new trial and employee appealed and employer
cross-appealed.
      Held:   Reversed and remanded.
Violation of criminal statute on malicious threats gives rise to a civil
cause of action; that employer's balance sheet and operating statement was
properly admitted to enable jury to determine amount of exemplary damages;
and that awards of $12,500 as compensatory damages and $50,000 as punitive
damages, while large, were not excessive
Jury needs to know the extent of the D's holdings in order to know how
large an award of damages is necessary to make him smart.  ("smart money "
for a poor man would not be and would not serve as a deterrent to a rich
man).:  This evidence is relevant, because P is looking for punitive
damages.
.Note:
Evidence of financial distress was relevant to provide motive for burning
down a building to collect insurance proceeds.

C.3. SIMILAR EVENTS.
Nachtscheim v. Beech Aircraft Corp. : Pilot's estate and owner of airplane
brought products liability action against airplane manufacturer alleging
negligence, strict liability, and failure to warn when estate's decedent
was killed in airplane crash.  The District Court entered judgment in favor
of manufacturer, and plaintiffs appealed. In particular, District Court
excluded expert testimony concerning another airplane accident, which
formed basis of expert's opinion in products liability action arising out
of airplane accident  because court determined that probative value of the
evidence of other accident is outweighed by its prejudice .
Held Affirmed.  The court excluded another accident because it found
circumstances of another accident not to be substantially similar.
Main Idea:  In complex product liability actions, you may use other
accidents to prove causation  (dangerous condition existed that caused the
accident) but they have to be substantially similar.  Otherwise, evidence
of other accidents is too prejudicial (jury may confuse 2 different
accidents ).
Notes:
1. Evidence of  the absence of similar accidents by manufacturer (to
establish that the claim was meritless) was admissible, as long as proper
foundation (product was used under substantially similar circumstances) was
laid.  Pandit v. Honda Motors.
2. If you want to present demonstrative evidence to prove how accident
occurred, you must conduct the test under conditions that are as  identical
 as possible to the accident in question (which is very often impossible).
On the other hand, if you want to present demonstrative evidence to
illustrate general scientific principles, you must conduct experiment under
the conditions very different from the real accident (to make sure that
jury is not misled).Fusco v. General Motors
3. Evidence of prior fraudulent claims by plaintiff is admissible if D
produced other evidence of fraud, otherwise evidence of prior claims by P
is prejudicial (shows his litigious nature-sue everybody)..Daigle v.
Coastal Marine
4. Evidence of prior contracts between the same parties may be admissible
to resolve ambiguity in the present contract. Oskey Gasoline & Oil Co.
5. Evidence of other sales of same product is admissible to establish fair
market value of the project. US v. White Hurst.

C.4.  GRUESOME PICTURES.
Terry v. State: In a murder trial Prosecution introduced color photos of
murdered one month old infant- autopsy photos.  Court admitted those photos
as evidence.
      Held: Reversed.  Pictures are inadmissible, because they served to
inflame the minds of the Jury.  On the other hand, the injuries to the
child were already proved by verbal evidence (prejudicial affect outweigh
probative value).
      3 ways to bring photos: 1) child with injuries, 2) child’s broken arm,
3) autopsy photos.  Autopsy photos would make a fact more probable, but the
prejudice would outweigh -Jury want to punish the person.
Note:
1. Prejudice (in FRE 403)  means any evidence that influences Jury  not
logically but emotionally and irrationally.
2. In weighing probative value v. prejudicial affect of any piece of
evidence, the Court must consider whether there is other less prejudicial
evidence on the same point. Old Chief v. US.

C.5.  IMPLICATING ANOTHER
Somebody else did it.
US v. Green:  A cop Green in the "hit and run" division was accused of
taking bribes from drivers who committed hit and run.  His defense was that
 the other cop in his division took bribes using his name.  In support of
his version, he offered evidence that this other cop was convicted of
extortion (racket).  Trial Judge excluded evidence of the other cop's
conviction as irrelevant.
Held: In the defense of mistaken identity, the other cop's conviction for
the similar offense was relevant and could have been admitted.  The grounds
for judge to exclude it was FRE 403 (confusion of jury) but judge did not
state these grounds. But even though Judge asserted incorrect grounds, it
does not warrant a new trial because Green's defense of mistaken identity
was weak and all other evidence was against him (he signed reports, drivers
spoke on the phone to a person called himself "Mr. Green", etc.).
Notes:
1. Evidence that another person had an opportunity or motive to commit a
crime of which D is accused is inadmissible in the absence of some other
evidence connecting that third person to a crime. State v. Woods

D.  RULE 401/403 BALANCING
401 Relevancy, 403- excluded if probat.value substantially outweighed by
the danger of unfair prejudice...
McQueeney v. Wilmington Trust Co.:    Slip & Fall. Only Witness. W
supported Plaintiff before trial. Seaman McQueeney brought suit under the
Jones Act  (personal injuries at the sea) against the owner and operator of
a supertanker. P was the only one who testified on his behalf.  He tried to
get another witness (De la Cerda) who first corroborated his claims at
deposition but then changed his testimony.  Therefore, P's counsel withdrew
that witness. Defense nevertheless tried to prove that  De al Cerda was not
on the ship at that time and his deposition testimony was fabricated. Since
De la Cerda didn't testify at trial, trial judge excluded this evidence as
irrelevant and prejudicial. Court entered judgment in favor of the seaman,
and the defendants appealed.
Held:  Reversed and remanded . Evidence  was relevant and admissible as
substantive evidence that McQueeny's claim against the owner and operator
of a supertanker was unfounded even though De La Cerda never testified.
Moreover, error  was not harmless because  the evidence was critical for
the defendant to make their argument on defense of liability and was
potentially their best evidence and not cumulative.
Rule to remember!: Virtually all evidence is prejudicial if it is material.
 Prejudice must be unfair and must substantially outweigh probative value.
      If highly probative and highly prejudicial - let it in, because
prejudicial don’t outweigh.
NOTES:
1.  Prejudice must be very high and probative value very low to exclude
evidence!
2. Power to exclude should be evoked by the judge very rarely. Herrington
v. Hiller.
3. Even if the judge thinks testimony is totally unbelievable he cannot
   excluded it under  FRE 403 - credibility is the issue for jury. Bowden v.
   McKenna
   Chapter 5  RELEVANCE - SPECIAL RULES.
Each rule has one way not permit you to use the evidence for this purpose.
        1. Subsequent remedial measures -FRE 407
        2. Compromise of offer of compromise - FRE 408
        3.  Medical expenses - FRE 409
        4. Pleas and plea discussions - FRE 410
        5. Liability Insurance - FRE 411

A. SUBSEQUENT REMEDIAL MEASURES.
FRE 407:  When, after an event, measures are taken which, if taken
previously, would have made the event less likely occur, evidence of the
subsequent measures is NOT ADMISSIBLE  to prove negligence or
culpable(guilt) conduct in connection with the event.
      Not excluded if this evidence offered for another purpose -  proving
ownership, control or feasibility (another way to do it) of preacautionary
measures, if controverted, or impeachment.

A.1. Strict Liability and Feasibility (possible to do).
Meller v. Heil Co.: P drove a dump truck for his employer, his body was
discovered between the dump bed and chassis of his truck.  P’s wife sue D
for wrongful death, charged that D liable in tort for defective design.
Judgment against D. D appeals: court erred in admitting evidence of post-
manufacture changes in the design the dump bed assembly.
      P offered this evidence in attempting to prove that the design was
unreasonably dangerous.  Court admitted with a cautionary instruction to
jury that the design changes are not to be considered as admission that
earlier design was defective, but simply that there is possibly an
alternative feasible design, another way to do it.
      Ap. Court held:  FRE -407: the feasibility of alternative designs was
an issue at trial, FRE-403: didn’t bar admission of the evidence, Judge
instructed the jury..(see above), that eliminated this evidence as an
unfairly prejudicial.
Notes:
1. Amendment to FRE 407 (may be effective 12/1/97): this will make the rule
   specifically applicable to all strict liability cases;  subsequent
   remedial measures would still be admissible to prove feasibility where
   that issue is controverted.
2. A repair to a defective condition constitutes a remedial measure: design
   change, firing of a negligent employee after an accident, change in rules
   or policies, etc.  Report of the Def’s investigators regarding a defect
   caused a fire - not excluded by FRE 407, because it is not remedial
   measure.
3. “Subsequent” means after the accident involved in the litigation, not
   after product was purchased or defective condition came into existence.
4. If the subsequent remedial measure is taken by someone other than D, FRE
   407 will not apply. (owner of the truck made changes), but it could be
   under FRE 403(prejudicial).

B. COMPROMISE AND OFFER OF COMPROMISE.

FRE 408:  Evidence of (1) furnishing or offering or promising to furnish
or(2) accepting or offering or promise to accept, a valuable consideration
in compromising or attempting to compromise a claim which was disputed  IS
NOT ADMISSIBLE TO PROVE LIABILITY FOR OR INVALIDITY OF THE CLAIM or its
amount.  Evidence of conducts or statements - not admissible.
      This rule doesn’t require the exclusion :
      1)of any evidence discoverable merely, but was presented in the course
of negotiation;  2) when the evidence is offered for another purpose:
      to impeach W by  showing his bias or prejudice
      to impeaching W with prior inconsistent statements
      to negate a contention of undue delay (bank was allowed to show the
letter in order to proof the position of the bank was reasonable and it
didn’t delay the transaction)
      to show obstruction of the criminal process (D’s recorded statement
where he tried to force W to drop of the charges was admissible, because
this statement was made in an attempt to avoid criminal prosecution);
      settlement agreement is admissible to prove the parties undertakings
in the agreement, should it be argued that a party broke the agreement.
      Factual question is whether or not it was a compromise of offer of
compromise.
      Alpex Computer Corp. v. Nintendo:P moves for an order pursuant to FRE
408 precluding D from introducing any evidence concerning P’s efforts to
compromise disputed claims re patent and amounts involved in efforts to
compromise.  Motion granted.
      By offering to settle D hoped to avoid litigation.  License Agreement
were made in settlement of litigation, any documents or other evidence
relating to this agreement fall within the protection of FRE 408.
      Notes:
1. Courts in most cases should decide against admitting statements made
   during negotiations as impeachment evidence.
2. Trial judge can exclude a compromise evidence offered to impeach
   witnesses for bias on the basis of FRE 403 (prejudicial outweigh).
3. FRE 408 is for both: the party who made the settlement offer and the
   party to whom this offer made.  Both can’t bring this as an evidence.

C. PAYMENTS OF MEDICAL OR SIMILAR EXPENSES
FRE 409:  Evidence of furnishing or offering or promising to pay medical
expenses occasioned by an injury is not admissible to prove liability for
the injury.
Arnold v. Owens: P was a pedestrian while struck by the truck.  Judgment
was for the defendant.  P appealed.
      W (father-in-law of the P, who she visited) testified that on the
following the day after the accident D came to P and offered to pay all her
hospital expenses.  Testimony was admitted,  later stricken out when it
seemed to the Court that D’s statement was made as an offer of compromise
of a disputed liability - this ruling has been assigned as error. The
reason - it was not clear from the record that parties were discussing a
claim or settlement. If the surroundings circumstances indicate not merely
an act of benevolence, but some admission of fault on the part of D, the
evidence may be admissible. Unless, it should appear on a new trial that
D’s offer of assistance was accompanied by circumstances tending to show an
admission of liability or an admission that his truck was the one involved
in accident - the evidence should not be received.  Even it is admitted,
Jury should be cautioned that the offer alone is not evidence of liability.
      Notes:
1. Difference between 409 and 410:
409- dealing with offers and compromise, 409- doesn’t extent to conduct or
statements not a part of the act of furnishing or offering or promising to
pay.  409 doesn’t exclude opinions or admissions of liability when made in
connection with an offer to pay hospital or other expenses covered by this
Rule.  If offer to cover medicals are made as part of the settlement it
would be govern by 408. 409 is not limited to offers or promises related to
a disputed claim. Any offer, promise, actual payment is inadmissible
whether or not any dispute over obligation to pay had arisen.

D.: PLEAS AND PLEA DISCUSSIONS.
FRE 410:  Evidence of the following is not, in any civil or criminal
proceeding, admissible against D who made the plea or was a participant in
the plea discussion:
1) a peal of guilty which was later withdrawn
2) a plea of nolo contendere
3) any statement made in the course of any proceedings under Fed. Rule of
   Crim.Proc. (or State Procedure) regarding either of the foregoing pleas;
4) any statement made in the course of plea discussion with any attorney
   for the prosecuting authority which do not result in a plea of guilty or
   which result but later withdrawn.
      However, such  a statements is admissible:
      a)in any proceeding wherein another statement made in the course of
the same plea or plea discussion has been introduced and the statement
ought, in fairness, to be considered contemporaneously with it.
      b)in a criminal proceeding for perjury or false statement if statement
was made by D under oath, on the record and in the presence of counsel.

      D.1. Use of Pleas for impeachment.
      US v. Udeagu: D was charged with importation of heroin and of
possession with intent to distribute.  He pled guilty under oath and then
withdraw his guilty plea.  D mad a motion in limine whether Government use
his statement to impeach the credibility.  Motion was granted.  The
statement of D given in open court under oath in the presence of counsel
when admitting details of guilt may not be used at D’s trial after the plea
of guilty is withdrawn
      Law: illegally obtained statement are inadmissible in the government’s
direct case, but they may be introduced to impeach the credibility of D.
      Notes:
      1. As a Witness according to FRE 609 D may be impeached on prior plea
convictions.
      .D.2. Can the protections of Rule 410 be waived.
US v. Mezzanatto: Defendant was convicted of possession of  methamphetamine,
 D was arrested while giving methamphetamine to the undercover officer  (who
was together with arrested  earlier  owner  of  the  meth.lab.).    D  w/his
attorney asked to  meet  with  Prosecutor  to  discuss  the  possibility  to
cooperate.  Prosecutor said that D has to agree  that  any  statements  made
during the meeting could be used to impeach any contradictory  testimony  at
trial.  D agreed to proceed. D admitted knowing that the  package  contained
methammph., that he knew about laboratory.  On the trial: D said he did  not
know that package contained  methamph  and  denied  having  statements  with
prosecutor.  Jury made a verdict against D.
      D appealed.
      Held: Reversed. and remanded based on finding that defendant  can  not
waive exclusionary  provisions  of  plea-statement  rules.   Certiorari  was
granted.
      Agreement to waive exclusionary  provisions  of  plea-statement  rules
was  enforceable  absent  any  showing  that  defendant  entered   agreement
unknowingly or involuntarily.
Failure  to  include  waiver  provision  in  rules  excluding,  subject   to
exceptions, evidence of plea statements was not  evidence  of  congressional
intent to preclude waiver.

E. LIABILITY INSURANCE.
FRE 411:  Evidence that a person was or was not  insured  against  liability
is not admissible upon  the  issue  whether  the  person  acted  negligently
otherwise wrongly.
      This rule doesn’t require  the  exclusion  of  evidence  of  insurance
against liability when  offered  for  another  purpose,  such  as  proof  of
agency, ownership, or control,  or  bias  or  prejudice  of  a  witness  (to
impeach a Witness)..
      Permissible uses of Liability Insurance.
Bernier v.  Board  of  County  Road  Commissioner:    Diversity  action  for
wrongful death. Decedent was killed while  he  was  driving  was  struck   P
claims that the accident ws caused by the couty’s failure to  properly  mark
intersection.   D has asserted an affirmative defense that  it  didn’t  have
sufficient fund to properly maintain intersection.  In order to show that  D
has funds, P introduced that D has liability insurance.   Judge  so  ordered
that evidence of having  liability  insurance  by  D  is  admissible  as  an
exception to the general prohibition of
insurance evidence contained in FRE 411.
Professor:  When you deal with evidence focus on the following:
1. Focus on a piece of evidence  - point sentence, phrase
2. Ask yourself if this piece of evidence concerned  the event in question
3. Why is this evidence proposed, what opposing party wants to proof?
            If nothing can be proved by this evidence - evid is irrelevant.
            If  you can see that this evid can proof something -
        1) think about special rules
        2) think about R403- prejudice,  if  the  probative  value  in  not
           outweigh by unfaire prejudice
        3) if it can be admitted into evidence, think if it is a  CHARACTER
           EVIDENCE
            If YES, think then
        1) Is it a civil or criminal case
        2) If criminal - who is the first party who proposed this evidence.
            D has to be first.
        3) What objections might be available to me?

Policy of the Character Rule: Juries might  decide  instant  cases  on  past
conduct.  Character evidence might confuse Jury.
      Chapter 6   CHARACTER EVIDENCE, PRIOR BAD ACTS, AND HABIT
      Character evidence is generally used to show the nature of a person as
it pertains to a particular trait, i.e. reckless, careful, hot-tempered,
peaceful, violent, calm, etc.
      Character evidence can be understand in 2 ways:
     1) substantive character evidence - when a trait of character is
        relevant to an issue in the case (homicide case - victim was an
        initial agressor)
     2) impeachment use of character evidence - attempt to discredit the
        witness or W’s testimony (W in murder - w had several convictions
        for perjury).

      Circumstantial use of character evidence and character “in issue”.
     1) character in issue -when a person’s character is a material fact
        (defamation case - truthfulness is in issue, child custody -
        provide good parent, negligent hiring or supervision - bad
        character of an employee if employer is sued for negligent hiring
        or failure to properly supervise an employee).  Character in issue
        is admissible.
           In fraud or negligence case the reputation of D is not in issue,
           because claim is based on fraud of D.  In negligent case the
           evidence of the good moral character of the D is not in issue.
     2) circumstantial use of character  - using evidence of a person’s
        character or trait of character to show that on  a particular
        occasion the person acted in conformity with this character
        (battery case - who was the first aggressor).  Those characters
        evidence is not allowed by FRE 404 (a).

Methods of proof (FRE 405): After a determination has been made that the
character evidence is admissible, there are 3 way (which vary upon the
purpose for which the evidence is offered)  to present substantive
character evidence;
1) reputation testimony
2) opinion testimony
3) specific instances of conduct..

CHARACTER EVIDENCE IS NOT ADMISSIBL TO PROVE THAT THE PERSON ACTED IN
CONFORMITY WITH THAT CHARACTER ON A GIVEN OCCASION, but there are
exceptions and clarifications.
     1) can be used to show not that he acted in conformity w/that
        character, but in some element of the case is satisfied - to show
        that he had certain knowledge, to show his identity as the person
        who committed a particular act, to show his motive, etc.
     2) proof of D's good character - criminal D may show evidence of a
        pertinent trait of his own character.
     3) victim's trait - criminal D may show evid of pert. trait of the
        victim.

      FRE 404 (a) Character evidence are not admissible, except:
1. Character of accused. (evidence offered by an accused, or by the
   prosecution to rebut the same.
2. Character of victim. (character of victim offered by an accused, or by
   the prosecution to rebut the same, or evidence of a char.trait of
   peacefulness of the victim offered by the prosecution in a homicide case
   to rebut evidence that the victim was the first aggressor - Self defense
   cases)
3. Character of witness. (evidence of the character of W -to impeach W)

FRE(b): Evidence of other crimes, acts is not admissible to prove character
of a person in order to show action in conformity therewith.  It may be
admissible for other purposes: proof of motive, opportunity, intent, plan,
knowledge.

Rule 1: The circumstantial use of character evidence is not permitted  in  a
civil case.
Ginter v. Norhwestern Mutual Life Ins.Co:  Beneficiary  v.  Ins.  Co.   Ins.
Defends  on  the  ground  that  there  were  material  omissions  from   the
application., decedent failed to disclose that he was  under  the  treatment
for depression.  P moved for the motion for pretrial evidentiary  ruling  on
the question of whether character evidence is admissible in a civil  case  :
W who would testify that the deceased insured was a man  of  good  character
and would unlikely to submit a fraudulent applicat
      Held: Character is not in issue. . This is  a  civil  case,  character
evidence is not permitted. (It doesn't say in 404(a), but we can  make  this
conclusion). The proffered evidence will be excluded  at  trial,  motion  is
denied.

Moorhead v. Mitsubishi Aircraft International, Inc.: Wrongful death  action.
 Plane crash killing all passengers (4).   The  pilot’s  estate  argued  the
admission into evidence of the pilot’s training  records,  which  contained:
low marks in handling emergency situations, test: he  is  weak  in  aircraft
knowledge, etc.
       Held:   Court  erroneous  ruled  those  evidence  admissible.   Those
evidence under FRE 404(1) should  be  excluded.   It  would  be  ground  for
reversal if this case would be in front of Jury, not the bench trial.
Notes:
1. FRE permit the circumstantial use of character evidence in some  criminal
   cases and not in civil cases.
2. The circumstantial use of character evidence  is  not  permissible  in  a
   civil cases for negligent driving: it was  error  to  admit  evidence  of
   previous speeding tickets to P in attempt to show that P was speeding and
   therefore at fault.

Exception to the general rule.  (Self-defense)
Dahlen v. Landis:
      P sought compensatory and punitive damages for  personal  injuries  he
got in an roadside altercation with D.  D claims  that  he  acted  in  self-
defense.  Jury -for P. D appealed.
      Held: Affirmed.  Court ERRORED in refusing to admit evidence of  other
instances of hostility of the part of P:  D testified  that  he  knew  about
P’s  violence,  that  P  threatened  his  employer  -re  specific  acts   of
hostility. P sought to call W to testify that P had threatened  him  in  the
Bar a year earlier.  W for D said that P had threatened him  in  the  Bar  a
year earlier.
 Those evidence are admissible for  purposes  other  than  to  show  that  a
person acted in conformity with his character.  FRE 404 (b).
This  rule  doesn’t  authorize  automatic  admission:  the   relevance   and
probative value of the evidence must  be  demonstrated.   Under  FRE  608(b)
court ruled that this evidence is inadmissible.
P’s character was not “in issue” in the strict sense  of  FRE  405(b).   Nor
error of trial court.
      Notes:
1. Court allow the circumstantial  use  of  character  evidence  in  battery
   cases: D’s knowledge of the victim’s aggressive  character  and  specific
   instances of aggressive acts may be admissible.
2. If civil case is based on conduct which is criminal  in  nature  (battery
   in civil rights action), criminal exceptions do not apply under FRE 404 ,
   but federal cours have applied this analogy.
Professor:
1. Court allow D to testify about prior conduct of P.
2. Court didn't allow W to testify about prior conduct of P.
3. R 404(a) -don't allow evidence to come in
4. D had fear, that is why he struck first
5. Ws can say that they all had fear

Rule 2: When character is  in  issue  in  a  civil  case,  evidence  of  the
pertinent character trait is admissible and may  be  proven  by  reputation,
opinion, and specific instances of conduct.
Negligent entrustment.
Van Houten-Maynard v. Anr Pipeline Co: Motions in  limine.   Wrongful  death
action.  P (decedent) was killed  by driving a tractor  that  collided  with
gas metering facility, pipeline explode.  P in motions seek to  exclude  any
evidence pertaining to deceased’s driving record, prior  accidents,  alleged
violations, reputation for carelessness.   D  brought  a  suit  against  the
third-party, employer of the deceased (who gave the vehicle  to  drive)  for
negligent entrustment.
      Held; In a negligent entrustment case the competence  and  fitness  of
the driver are issues of fact.   Purpose of this evidence  is  to  establish
the negligent entrustment case against employer of  deceased.   P’s  motions
are denied.  But court gave  instructions  to  jury  that  evidence  of  the
driver’s prior acts  is  to  be  considered  only  in  regard  to  negligent
entrustment claim against employer of P and this evidence is  irrelevant  to
whether P was negligent.
                               CRIMINAL CASES
Look who is introducing an evidence.  If evid introduced in case-in-chief -
WRONG.

Rule 3.  In a  criminal  case,  the  prosecution  may  not  offer  character
evidence concerning D in its case in chief.
US v. Williams:  D was found guilty on four counts  of  transporting  stolen
vehicles in interstate commerce.  D’s  post-trial  motions  were  denied  .D
appealed, alleges several trail errors that deprived him of a fair trial.
      Held: Remand for a new trial. (1) Court  permitted  the  detective  to
state that he knew D as “Fast Eddie”, D appeals that  it  caused  him  undue
prejudice.  Police detective’s testimony intimated to the jury  that  D  was
known to be  involved  in  criminal  activity.   This  testimony  should  be
excluded from evidence as more prejudicial than probative.
      Trial court had ruled prior to  trial  that  evidence  of  an  earlier
criminal conviction would be admissible to impeach the  D’s  credibility  as
witness .  But D never took a stand and this evidence was never  introduced.
 When Jury heard the detective’s testimony - it was only  evidence  relating
to D’s character, reputation or background.

Rule 4.  In a criminal case character evidence of a pertinent trait  of  the
D is admissible if offered by D, after which the state  may  offer  rebuttal
evidence.  Proof may be made only by reputation and opinion.
Michelson v. US:  D was convicted of bribing a federal  revenue  agent.   D,
as a W of his own behalf, admitted passing the  money  but  claimed  it  was
done in response to the agent’s demands, threats, solicitations.  The  issue
turned on whether the jury should believe the agent or  the  accused.     To
four of  witnesses the prosecution addressed the question the  allowance  of
which is claimed to be reversible error: “Did  you  ever  hear  that  D  was
arrested for receiving stolen goods?”  Judge on three occasions  warned  the
jury of the limited purpose for which this evidence was received.
      Held:  Affirmed. While the law gives D the option to show  as  a  fact
that his reputation reflects a life and habit incompatible  with  commission
of the offense charged, it  subjects  his  proof  to  tests  of  credibility
designed to prevent him from profiting by a mere parade of partisans.  D  on
direct voluntarily called attention to his conviction twenty years before.
      Notes:
1. Pertinent trait - under FRE 401(a)(1) generally synonymous with the  word
   “relevant”.
2. Good moral character is a pertinent train in criminal actions.
3. Law-abiding is pertinent trait.  Character traits  admissible  under  FRE
   404(a)(1) need not  constitute  specific  traits  of  character  but  may
   include general traits such as lawfulness and law-abidingness.
4. Honesty is pertinent to both bribery and receiving stolen goods  charges.
    Honesty is not pertinent train for assault for shooting at aliens.
5. Truthfulness is not pertinent to the criminal charges  of  conspiracy  to
   distribute heroin or possession of  heroin;  to  charges  for  aggravated
   assault, assault,  kidnapping,  false  imprisonment,  carrying  concealed
   weapons, abuse of incompetent prosecutions.  Truthfulness is pertinent to
   robbery, burglary and theft.
6. Truthfulness is pertinent to a perjury charge.
7. Character evidence may only be shown by reputation.    Allowing  negative
   reputation evidence where people in the community had not heard  anything
   bad about defendant.

Professor:  Reputation:
1. W is a reporter.  Foundation has to be  established  that  W  knows  this
   person.  "Do you know this person?"
2. W has to talk re character trait in community aspect , in a  time  frame.
   "Do you know if X has reputation for honesty in a community?"  -  Yes,  I
   know.
3. W has to be aware of particular character trait.  "What do you know"  -He
   is great, honest… .
                 Opinion:
1. W offering her/his own opinion
2. Foundation question - that W knows D or heard about him
3. "Have you formed an opinion about D's character trait -honesty?"  -  Yes,
   I did. - "What is your opinion?"
                 Specific instances of conduct - essential element R.405(b)
Very rear, mostly in NEGLIGMENT INTRUSTMENT CASES.

Rule 5. In a criminal case, character evidence of a  pertinent  trait  of  a
victim is admissible if first offered by D, after which the State may  offer
rebuttal evidence.  Proof may be made only by reputation and opinion.
US v. Keiser:  D was  charged  with  assault  resulting  in  serious  bodily
injury.  D shot V, paralyzing him.  D’s theory of trial  -he  had  acted  in
defense of his brother, who he believed was in danger.  D called brother  on
the stand and asked him re incident happened  day  before.  Pros.  objected,
court sustained.  D made an offer of proof: W  supposed  to  tell  that  D’s
brother met Victim, and V said: facker’s brother, V was screaming, etc.
      Issue: whether Ds may introduce specific violent  or  aggressive  acts
of the victim in order to bolster a claim of self-defense.
      Hold:  Under FRE 404(a)(2) there is an exception to the general  rule:
 D may introduce  evidence of  the pertinent chart of the victim.   Victim’s
violent nature is relevant to D’s theory of defense of his brother.
      Under FRE 405 only reputation or opinion evidence is  proper  to  show
that the victim of an assault had a propensity  toward  violence.   But  the
excluded  testimony  would  have  constituted  paradigmatic   specific   act
evidence.  Under FRE 405(2) the question is whether  V’s  violent  character
is an  “essential  element”=  would  proof  or  failure  to  proof,  of  the
character trait by itself actually satisfy an element of the charge,  claim,
or defense?. Ap.Court conclude - Victim’s violent nature  is  not  essential
to a successful claim of self-defense.

Rule 6.  In a homicide case, if the D offers evidence that the deceased  was
the first aggressor, the prosecution may then  offer  rebuttal  evidence  of
the peacefulness of the victim.  Proof may be made only  by  reputation  and
opinion.
State v. Hicks: D charged with 1st degree murder.   D  appeal  that  was  an
error in admitting evidence showing the peacefulness  of  V.   State  argues
that objection was waived  and  defense  raised  the  issue  initially.  D’s
counsel did remark to  the jury in the opening statement:  “V  had  problems
with deceased victim in the past, he was a loudmouth, cutting-type  person.”
Prosecutor called 4 Ws, all  testified  that  they  never  seen  the  victim
become physically violent, one W seen  him  angry  with  someone.”   Defense
introduced no evidence of  V’s character  for  the  state  to  rebut.  Self-
defense was  not  raised,  was  not  evidence  that  Victim  was  the  first
aggressor.
      Hold: was error to permit the prosecution to present evidence  of  the
V’s peaceful character.

Difference between Rule5 and 6:   If D said that victim started a fight
      in battery case - Def’s testimony would not permit character  rebuttal
by the state, since character evidence was not offered (Rule 5)
      in homicide case -character evidence of the V’s peaceful nature  would
be  admitted,  because  Victim  is   not   here   to   defend   himself    -
reputation/opinion evidence is allowed.  In HOMICIDE cases  -  more  relaxed
ruled for evidence to come in.

Rule 7.  In a criminal case, when character is an  essential  element  of  a
charge, claim, or defense, proof may be made  by  reputation,  opinion,  and
specific instances of conduct.
      the chastity (innocence) of the victim under a statute specifying  her
chastity as an element of the crime of seduction.

Rule  8.  Any  character  witness  may  be  cross-examined  concerning  that
Witness’s
knowledge of specific instances of  pertinent  bad  acts  committed  by  the
person whose character that witness has endorsed.
US v. Wooden: D was charged with burglary and petty  larceny  (robbery).   D
denied that he had stolen any  property,  co-Defendant  didn’t  testify.   D
Called W, who corroborated the D’s testimony.  Appellant’s assigned  counsel
then undertook to question W concerning the D’s reputation.  State  Att.  at
the bench warned D that as soon as he put D’s character in evidence, he  can
ask him re 20 drunk convictions.  D’s att withdraw the question.
       Hold:  Scope  of  cross-examination  is  not  unlimited.   Impeaching
questions must  be  tested  by  comparison  with  the  reputation  asserted.
Questions about D’s 20 convictions for being drunk  were  impermissible,  it
is not relevant to a reputation for honesty and integrity.   The  ruling  of
the judge foreclosed the introduction  of  any  evidence  of  the  D’s  goot
reputation, and this was prejudicial.  New trial granted.

Notes.
1. Procedural safeguards required before inquiring into prior  specific  bad
   act. On cross Prosec. asked W if he heard that  D  had  perjured  himself
   before a Jury 25 years ago.  Hold: (1) Government must demonstrate a good
   faith factual basis for the incidents raised during cross of W. - in this
   case prosec. lacked a good faith. (2) the incidents inquired  about  must
   be relevant to the character traits at issue in the case.
2. Prosecutor can not ask questions of character  witness which  assume  the
   D’s guilt of the crime charged.   D charged  with  mail  fraud,  use  her
   empl’s credit card for personal purchase.     Witness  testified  to  D’s
   reputation for honesty, on cross prosec asked W if she heard that D  used
   employer’s credit card to buy jewelry.
3. Witness treated as a character witness .   If  D  introduces  evid  of  a
   relevant character trait of the victim, the prosec. cannot respond with a
   negative character trait of D -the  door  was  never  opened  as  to  D’s
   character traits.  If D introduces positive evid re one  of  the  traits,
   the prosec. cannot respond with negative evid re a difference character.

Rule 9.  Similar acts - Specific instances  of  conduct  are  admissible  to
prove intent, motive, plan, design, or any purpose other than character,  so
long as the probative value of the  evidence  as  to  its  not-for-character
purpose is not substantially outweighed by the risk of prejudice.
FRE 404:  Character evidence not admissible to  prove  conduct,  exceptions,
other crimes.
b) Other crimes, wrongs, or acts.  Evid of other crimes, wrongs or acts  are
 not admissible to prove the character of a person in order to  show  action
 in conformity therewith.
            It may be  admissible  for  other  purposes:  proof  of  motive,
opportunity, intent, preparation, plan, knowledge, identity, or  absence  of
mistake or  accident,  provided  that  upon  request  by  the  accused,  the
prosecution in a criminal case shall provide reasonable  notice  in  advance
of trial, or during trial if the  court  excuses  pretrial  notice  on  good
cause shown, of the general nature  of  any  such  evidence  it  intends  to
introduce at trial.

Motive                                       Preparation
Intent                                       Opportunity
Mistake (absence of)              Plan
Identity
Knowledge

   1. IDENTITY.
   Can apply where the identity of the person who committed a particular act
   is truly in issue, only if D doesn't admit that if was he  who  performed
   this conduct.
   The other crime and the crime  charged  may  both  bear  the  same  clear
   "signature", i.e. reflect the same  unusual  modus  operandi  (method  of
   operation -the similarity has to be so great that it's extremely unlikely
   that two different  criminals  were  involved).   If  there  is  evidence
   establishing that the person who committed the other  crime  was  D,  the
   other crime will suggest that the perpetrator of the  crime  charged  was
   also d.
      US v. Jones:  D was arrested by undercover for  drug  dealing.   While
   officers searched his apartment they found pieces of paper  with  lottery
   numbers and lists of bets.  Those were admitted into evidence along  with
   similar commercial gambling documents found in Jone’s truck in Feb.91 and
   evidence of Jone’s conviction in 1987 for commercial gambling.
      Hold: to be admissible under FRE 404(b) Jone’s 1987 and 1991  gambling
   crimes must demonstrate a modus operandi, or signature trait, similar  to
   that demonstrated by the July 1991 gambling crime.  Those  evidence  were
   related  to  illegal  commercial  gambling  in  general,  not  that  they
   represented  any  particular  modus  operandi  or  indicated   that   any
   particular gambling  operation was involved.  Inadmissible, but error was
   harmless.

2. MOTIVE.
Since motive itself is never an essential element of a  crime,  the  use  of
other-crimes evid   to  establish  motive  is  always  part  of  a  chin  or
reasoning.   The proof of motive may be probative either of  conduct  (if  D
had a motive to do so, it is more likely that he did the act than if he  had
no motive)  or  of  intent  (given  that  D  did  the  act,  did  he  do  so
intentionally, purposefully, maliciously).
US v. Potter: D -is doctor charges with unlawfully  distributing  controlled
substances.  Court admitted into evidence testimonies  of  5  Ws,  who  said
that they performed oral sex for D on his request while  D  prescribed  them
the medicine.  D  denied  any  sexual  relations  and  appealed  that  those
testimonies re sex couldn’t be permitted.
      HOLD:  Here the evidence was not  offered  to  impugn  character,  but
rather to prove motive and lack of good faith intent in  failing  to  comply
with usual “professional practices”.  It  was  sufficient  that  the  sexual
favors provided an inducement to  prescribe  controlled  substances  without
medical purpose.  Sexual  acts  were  clearly  connected  with  the  illegal
transactions.
      Notes:
      1. Other kinds of bad acts are probative of motive: for  murder  of  a
fellow prisoner - evidence of the D’s affiliation with the Mexican Mafia,  a
prison gang, was admitted where the evidence showed  that  D  committed  the
murder in order to gain entry into the gang.
      2.  Court dismissed the probative  value  of  the  evidence  to  prove
motive because it could hardly come as a surprise to the  jury  that  D  was
robbing a bank because he needed money  for  some  reason.  Court  responded
that there are  limits  to  the  drugs-as-financial-motive  argument,  court
found that the government had introduced highly imprecise evidence  of  drug
usage with no corresponding evidence of financial need.

3. INTENT OR KNOWLEDGE.
Intent.
Evidence may be used to show that  D  acted  maliciously,  deliberately,  or
with the specific intent required for the crime.
      Postman (D) took the silver dollar  from  the  mail,  2  other  credit
cards were found in his pocket.  D said he didn't want to take this  dollar,
he wanted to put it back to mail.   He was not  charged  for  credit  cards,
but it was introduced as evidence of intent regarding silver dollar.
Knowledge
Evidence of crime used to show, by similar acts, that the  act  in  question
"was not performed inadvertently, accidentally,  involuntarily,  or  without
guilty knowledge".   Situations  where  knowledge  is  statutorily  made  an
essential element.
      D is prosecuted for knowingly receiving stolen  goods  (video  tapes).
D, who bought the tapes from  W,  claims  he  didn't  know  that  they  were
stolen.   Prosecution offer evidence that on prior occasions D bought  other
stolen goods from W, thus suggesting that D must have known that  the  tapes
were stolen.

US v. Hearst: D was charged with robbery of San Francisco bank.   Government
in case-in-chief introduced evidence connecting D with criminal activity  at
a store and with a kidnapping and theft, which happened in 1 month after  SF
bank robbery.   D  raised  her  defense  of  duress  at  trial  and  offered
substantial evidence to support it.
      Held: To convict D government was required to show appellant  was  not
acting under duress, the evidence of another crimes in  1  month  later  was
relevant to this issue because it tended to show D willingfully  engaged  in
other criminal activity with the same persons.
The relevance of the evidence didn’t depend on  the   similarity  of  crimes
but  on  the  circumstances  surrounding  the  occurrence,  which  indicated
appellant had not acted under duress  when  she  participated  in  the  bank
robbery.
      Under FRE 403- this determination is under the court discretion.
      Court erred in admitting those evidence in case-in-chief,  but  it  is
harmless.
Test : 2 steps
1) if evidence is relevant to show intent or knowledge
2) the balancing of the evidence's probative value against its prejudicial.

4. OTHER SITUATIONS.
Under FRE a piece of  other-crimes  evid  does  not  have  to  fit  into  an
enumerated "slot" to be admissible .  Evid must relate  to  some  particular
element of the crime charged, and must not  be  offered  solely  to  suggest
that b/c  the  accused  had  certain  crim  traits,  he  probable  acted  in
conformity with those traits on the occasion issue.
US v. Woods: D charged w/ 1st degree murder of her 8mon son Paul,  who  died
after cyanotic attacks.  Prosecution offers expert testimony  that  boy  was
smothered to death 75%, but 25% -possibility that V died naturally from  the
unknown to med. science decease.  Then Pros offers evid that over a  23-year
period, nine other children had experienced  cyanotic  attacks  while  under
D's care,  5 of whom died, 2  more died -another reason.
      Held: Affirmed.  The evidence concerning the other children's  attacks
is admissible. Evidence of  other offences may  be  received,  if  relevant,
for any purpose other than to show a mere propensity or disposition  on  the
part of the D to commit a crime.   The  probative  value  of  this  evid  is
outweigh the undue prejudice.  The possibility that so  many  infants  would
suffer cyanotic episodes w/out D's being at fault is unreasonable.
       Dissent:  Evidence  of  prior  occurrences,  fitting  no   recognized
exception to the general  rule,  was  prejudicial,  nor  plain,  clear,  nor
convincing- should not have been admitted..  D was  not  charged,  convicted
for the death of other children, they died naturally as per certificates  of
death.

      Notes:
1. R.404(b) is inapplicable to bad acts  which  are  related  to  the  crime
   charged.
2. The balancing test should be applied under R 403 to bad act evidence.
3. R 404(b) applicable for civil cases also. P  claimed  emotional  injuries
   as a result of the accident.  P's drug use was  admitted  to  provide  an
   alternative explanation for his emotional problems.

Rule 10.  Habit - Evidence of habit  is  admissible  to  show  that  conduct
conformed to habit.
1O-1.       Habit is (1)a regular response to a certain  repeated  situation
and (2) must be tied specifically to conduct in the case.
      Distinction between habit and character.
      Character -generalized description of  a  person's  disposition  -  (X
drives carefully).
      Habit -  more  specific,  it  denotes  one's  regular  response  to  a
repeated situation (X  crossing  the   particular  railroad,  always  stops,
looks both ways, then proceeds).
      3 factors to distinguish:
1) Specificity.  The more specific the behavior -more likely it is a  habit.
   (crossing particular railroad)
2) Regularity. More regular the behavior -more likely it is a habit.  (going
   to work by the same street in 95% of all time)
3) Degree of reflection.   Behavior  is  more  unreflective,  semi-automatic
   than if it's volitional and conscious.

FRE 406:  Evid of the habit of a person or of the  routine  practice  of  an
organization whether corroborated or not and regardless of the  presence  of
eyewitnesses, is relevant to  prove  that  the  conduct  of  the  person  or
organization on a particular occasion was in conformity with  the  habit  or
routine practice.
Note: No eyewitnesses required.  Doesn't say how should be provided:  mostly
by testimony, by any other way is permitted on a case-by-case basis.
       Halloran v.  Virginia  Chemicals,  Inc.:  P,  an  auto  mechanic,  is
injured while trying to warm up a can  or  refrigerant  manufactured  by  D.
Product liability case. P asserts that he heated it by surrounding  it  with
warm water. D offered a testimony of W that he saw D use  immersion  heating
coil to heat the same, in violation of  warnings of the label.
      Held:  W testimony should  be  allowed.   Evidence  that  P  regularly
serviced auto air-condit.  unit  by  use  of  refrigerant  ,  and  that   he
routinely used a coil to heat the refrigerant, was sufficient  to  establish
a habit on P's part.
      Note: All courts freely allow evidence of the routine practice  of  an
organization,  because   the   need   for   regularity   in   business   and
organizational sanctions which may exist when  custom  is  violated  provide
extra guarantees that the questioned activity followed the usual custom.

      10-2.  Interaction among character, habit, and methods  of  proof:  an
extraordinary definition of habit.
Perrin v. Anderson:  P (administratrix of  Perrin's  estate)  brought  civil
rights  action  for  compensatory  and  punitive  damages   against   police
officers, who killed P while attempting to obtain info re accident in  which
P had been involved.  Court admitted testimonies of 4 police  officers  that
they have been involved w/Perrin  on different occasions and he  always  was
completely  uncontrollable  and  violent  in  the  presence   of   uniformed
officers.
      Held:  the testimony is admissible as evid of a  habit.   B/c  methods
of proof are not limited re  habit,   testimony  concerning  prior  specific
incidents is allowed. D had made an offer of proof of testimony of 8  police
officers, but court allowed only to prevent undue prejudice to P.

Rule  11.   The  rules  on  character  and  bad  act  evidence  are  applied
differently in cases involving  rape  or  sexual  abuse.   Evidence  of  the
victim's prior sexual activity is more strictly  regulated,  while  evid  of
the D's prior bad acts is more permissively treated.

FRE 412: Sex offense  Cases;  Relevance  of  Alleged  Victim's  Past  Sexual
Behavior or Alleged Sexual Predisposition.
a) Generally  the  following  evidence  is  inadmissible  in  any  civil  or
   criminal proceeding involving alleged sexual misconduct except
            Evid offered to prove that any alleged
        1) victim engaged in other sexual behavior
        2) victim's sexual predisposition

b) Exceptions:
   3) In criminal case admissible evidence of specific instances  of  sexual
      behavior by the alleged victim
            A)  another person was the source of semen, injury or   physical
   evidence
           B) with respect to the person accused of the  sexual  misconduct
              offered by the accused to prove consent or by the prosecution
           C) evidence the exclusion  of  which  would  violate  the  const
              rights of  D.

     2) In a civil case, evid to prove the sexual  behaviou  of  victim  is
        admissible if it is otherwise  admissible  under  FRE  and  if  its
        probative value subst outweigh the danger and harm to victim and of
        unfair  prejudice  to  any  party.  Evid  of   V's  reputation   is
        admissible if has been placed in controversy by the V.

c) Procedure to determine admissibility.
     4) A party must
           E)  file  a  written  motion  at  least  14  days  before  trial
              describing evid , purposes unless court  permits  during  the
              trial or another time limit.
           F) serve the motion  on  all  parties  and  notify  victim  (V's
              guardian)

     2) Before admitting court must conduct a hearing in camera, victim and
        parties can attend and be heard. All papers must be  sealed  unless
        the court order otherwise.

RAPE SHIELD PROTECTION AND THE DEF'S CONSTITUTIONAL RIGHTS.
US v. Bear Stops: D was convicted of aggravated sexual abuse of two  victims
and of abusive sexual contact with one victim, and he appealed.
      Held: Affirmed in part, reversed in part, and remanded.
(1) evidence that one victim was sexually assaulted by some older  boys  had
to be admitted to provide alternative explanation  for  victim's  exhibiting
behavioral manifestations of sexually  abused  child;   (2)  district  court
unduly restricted this evidence admission  to  extent  that  district  court
excluded basic factual details of  other  sexual  assault,  including  time,
place, age and sex of perpetrators, and type of assault.
      Court precluded D from x-exam boy's mother regarding possibility  that
victim's bloody underwear were associated with  another  sexual  assault  of
victim by three older boys;  absent any proof of type and timing  of  sexual
assault by three older boys, jury likely  concluded  that  bloody  underwear
could only be result of sexual abuse by defendant.
      Evidence of victim's sexual assault  by  three  older  boys  could  be
excluded from prosecution  of  defendant  for  aggravated  sexual  abuse  to
extent it was offered to show alternative source  of  six-year-old  victim's
sexual sophistication, to challenge accuracy of victim's  identification  of
defendant as  perpetrator  of  sexual  assault  at  issue,  and  to  impeach
victim's testimony.

      Note: Rule 412 applicable to civil cases, including sexual  harassment
in employment, sexual misconduct

FRE 413: Evidence of  Similar Crimes in Sexual Assault Cases.
FRE 414: Evidence of Similar Crimes in Child Molestation Cases.
FRE 415: Evid of Similar Acts in  Civil  Cases  concerning  Sex  Assault  or
Child Molest.
      Those evidence are admissible, and may be considered for  its  bearing
on any matter to which is relevant.  Govern should disclose  evid  to  D  at
least 15 days before the trial or as per court.  Child  -  is  person  below
age 14.

       Rules  are  substantively  identical.  Goal  -provide  more   liberal
admissibility of D's prior sex offenses in case involving  alleged  rape  or
sexual abuse.  These rules is exception to  FRE  404(b)  in  sexual  assault
cases, where the prosecution or P wishes to offer a previous act  of  sexual
assault committed by D.
404(b) - Pros. can't offer prior act of sex assault  without   not-character
purpose.
413 - Pros can offer this to prove D's bad character,  limiting  instruction
to jury is not
             required.   But  under  R.413  only  sex  assault,  R.414-child
molestation can be offered;       not murder.

      Special treatment because sex assault very difficult to prove.

      R.403 balancing test is less likely to result in the exclusion of
prior acts of sex misconduct that would be the case without these rules.
Character  Evidence Rules:
1. Civil cases - char evid not permitted
2. Civ/Crim - is in issue - permitted
3. Crim - can’t be introduced by Prosec first
4. Crim -can be introduced by D first, then Prosec - rebuttal.       Only
   by Reputation and Opinion.
5. Crim -char evid of V if introduced by D, Prosec - rebuttal.  Only by Rep
   and Opin.
6. Crim - Homicide - Pros allowed in self-defense if D said that V -first
   agressor.  Only by Reputation and Opinion
7. Crim - character evid when is an essential element of charge.  Proof by
   Rep, Opinion and    SPECIFIC INSTANCES OF CONDUCT
8. Cross Exam - allowed SPECIFIC INSTANCES OF bad act
9. Similar acts - SPECIFIC INSTANCES OF CONDUCT to prove not character ,
   but MIMIK POP.  Balance with 403.
10. Habit - admissible to show conduct conformed with habit.
11. Rape, sex. abuse: Victim - strictly regulated, Def - more permissive.

Federal Rules:
404 - character evid is not allowed
404(a) exception: D’s char by Def; V’s char - by Def; V’s Homicide -if self-
def by Prosec.
404(b) other purposes: MIMIC POP
405 -Methods: reputation, opinion, specific instances of conduct
406 - Habit
412 - Rape shield. V’s sex.behavior inadmissible, except:  another person
-source of sperm and D want to prove consent; D’s constitutional rights
413,414- Similar crimes in sex. assault cases, child molest. - admissible
prior acts. Exceptions: V’s reputation if place by in controversy.
415-same as 413,414 , but Civil cases.  Exception : if otherwise admissible
by FRE.
Chapter 7.   FOUNDATION REQUIREMENTS

FRE 901: a) Requirement of Authentication or Authentication.  All  real  and
demonstrative evid must be authenticated before it is admitted. Object  must
be genuine -what its proponent claims it to be.
b) By way of illustration only, not by way of limitation, the following  are
examples of authent. or identif. conforming with the  requirements  of  this
rule:
      1) Testimony of W with knowledge …

2 categories of physical, tangible evidence:
Real evidence - piece of evid  which was involved  in  the  litigation(proof
that the gun was actually used by D in robbing the bank)
Demonstrative - object not originally involved in litigation,  but  produced
some time thereafter. (Map, diagrams, models)
with purpose: 1) to aid W in his testimony; 2) to help  jury  to  understand
the W’s tesimony
      Distinguish between them: how you laid a foundation.
Real - the thing was originally involved - have to be certain that  this  is
the one, use chase of custody if no unik, chain of custody - from  point  it
was found to the point when it was introduced.  Very important - drugs  (the
one which were fount and the one which were tested).
Demonstrative - to establish how this piece  of  evidence  assist  to  W  in
giving a testimony and assist to jury in  receiving  and  understanding  the
testimony.

 No assumption of authenticity -with few exception,  an  object  offered  in
evid with not be presumed to be authentic. The proponent  bears  the  burden
of establishing that the object is what he says it is

The requitement of authentication applies to  all  evidence.   All  evidence
must  be  authenticated  including  conversations   and   other   intangible
evidence.
Relevance. The requirement of  authentication  is  a  special  case  of  the
requirement that all evidence be relevant.

Role Judge and Jury - difference in admissibility and weigh.
Judge decide if the evid can be admitted,  whether there  is  some  evidence
from which a Jury could reasonably find that the item is what it is  claimed
to be.
Jury - whether the item is what its proponent claims it to be.

                         METHODS OF AUTHENTICATION:

A.  REAL EVIDENCE - authenticating an item  of  real  evidence  consists  of
showing that the item really is the item  that  was  actually  used  in  the
transaction.  2 methods of authenticating an item of real evidence:
      1) Ready identifiability.  First method  is  sometimes  called  "ready
identifiability" or "unique identifiability".  This method can  be  used  if
an item has a unique, one of a kind  characteristics.  Testimony  of  W  who
specified unique characteristic and the item shown to  him  bears  the  same
unique identifier - all what we need for authenticating the object.
      2)  Chain  of  Custody.   Second  method  by  showing  its  "chain  of
custody".  Used when one element for ready identifiability is absent.   This
method requires that every person who has handled or  possessed  the  object
since it was first recognized as being relevant to the case -  must  explain
what he did with it.
            Prevention of tampering. A key reason for the  elaborate  chain-
of-custody method is to prevent (or discourage) tampering with evidence.

Lockhart v. McCotter: Wallet  was  put  by  Jail  officer  to  the  personal
property envelope and  identified  as  a  “purse”.  Later  prosecutor  asked
investigator to search envelope, and investigator  located  the  inventoried
“purse” which appeared to be the wallet taken in the robbery.  At the  trial
V identified this wallet and 2 pictures contained in it.
      Held:  when  an  object  cannot  be  easily  altered  or  substituted,
establishing a continuous chain of custody is  not  important.   Failure  to
establish a chain of custody will go only to  the  weight  of  the  evidence
rather that its admissibility.  When  the  object  expressly  identified  at
trial as the object involved in the crime, establishing a chain  of  custody
is not necessary for the object to be admissible.
      Professor: I want to know who put this wallet into the envelope!

B. DEMONSTRATIVE EVIDENCE.
Where the evidence is "demonstrative" (used   to  illustrate  some  fact  or
evid in the case), the function of authentication is defferent.  The  object
is authenticated not by showing that it is one that was actually  used,  but
BY SHOWING THAT IT FAIRLY REPRESENTS some aspect of the case. (diagram)

B1.  Demonstrative evidence defined.
Smith v. Ohio Oil Co:  P suffered personal injuries, was run into by  truck.
 P recovered judgment.  D appealed: court permitted the  use  of  a  plastic
model of a human skeleton to assist the explanations of  doctor  re  present
condition of P. Doctor showed on skeleton what P is  having  now  after  the
accident compare his X-Ray to the skeleton of normal person.
       Held:  explanation  was  relevant,  helpful  and  contained   nothing
emotional or dramatic in character.
Professor: you have to lay foundation for  2  elements:  relevancy  and  how
this evidence will assist to W and Jury.

B2. Photograph, Videotapes and Recordings.
Brown v. Barnes:  Automobile collision. D ran a stop sign. Her defense:  she
couldn’t see the stop sign, because the sign was hidden from the view  by  a
truck.  Photos of the intersection were admissible showing that  D  couldn’t
see the Stop sign.  Was unknown who did this pictures and when.
      Held: Affirmed. While originally such evidence ought  to  be  received
cautiously admission in this case was not reversible error.
Professor: You can take those pictures from the different angles, not  agree
with the case.

B3. X-Rays.
King v. Williams: Med.mal case.  Doctor didn’t order the required  X-ray  of
the whole foot, only ankle area.  Later, the other doctor requested  the  X-
Ray of the foot and found a fracture.  For authent. of   x-rays:  Technician
went away and D refused to give a testimony. But X-rays were inscribed  with
P’s name, date taken, name of Hospital. Were admitted  after  the  chain  of
possession was established.
      Hold:  authentication  involves  verification  and  identification  by
someone who has knowledge that the X-rays are what they purport to be,  such
as the technician taking them or the physician ordering them.  In this  case
- no technician, no physician..  This is exception without merit.   Judgment
affirmed.
      X-Rays usually authenticated  applying  the  analysis  of  R.901(b)(9)
which require: testimony concerning  equipment  and  qualifications  of  the
technicians.

C. VOICE IDENTIFICATION AND PHONE CALLS.
C1. Voice Indentification.
US v. Watson:  Court permitted  tape  recordings  of  intercepted  telephone
conversations and transcripts in conspiracy drug involved case.
      Held: 1) Identification of the speaker.  Familiarity  with  the  voice
may be acquired ither before or after the particular speaking.  Some  cases:
2 short meeting was enough to establish  familiarity.   Judge  admitted  and
Jury had to weigh this.
2)Unless the unintelligible portions are so substantial  as  to  render  the
recording as a whole untrustworthy, it  may  be  admitted.   3)  Transcripts
were properly NOT admitted as evidence, but were given to  jury  to  use  to
assist them in listening with the instructions to jury not to  consider  the
transcripts as evidence.

      When the contents  of  a  telephone  conversation  are  sought  to  be
proved, the proponent must authenticate  the  conversation  by  establishing
the parties to it.
C2. Incoming Telephone Calls.
      Self-authentication by  the  caller  is  not  enough.   Must  be  some
additional evidence that the caller is who he said he was.   Saying  that  I
received the call from X, because he said he was X is not enough.  But if  W
says that I received a call from X, because I recognized his voice -  enough
to authenticate.
      People v. Lyns:  Detective left with Def’s brother his name and  phone
# to call him.  In some time he received the call and the person  said  that
he is Nick (Def.)  This  conversation  was  admitted  as  evidence,  because
records reveals the following:  no attempt by detective to communicate  with
D other than on the occasion when he left the  request  to  call  him,  then
court view D’s admission made to other PO, that D  knew  the  detective  was
looking for him as additional confirmation that the  message  was  delivered
intact to its intended recipient.

C3. Outgoing Telephone Calls.
For outgoing calls (calls made by  the  sponsoring  W),  the  proponent  can
authenticate the call by showing that
1) W made a  call  to  the  number  assigned  by  the  Phone  company  to  a
particular person
2) The circumstances ( self-identif: this is  George  or  caller’s  identif:
recognize the voice)  show that the person who talked on the other  end  was
in fact the person the caller was trying to reach.

      Call to business - authent. can be made by showing the call  was  made
to the listed # for the business  and  that  the  conversation  “related  to
business reasonably transacted over the telephone.
Barrickman v.  National  Utilities  Co.:   Plaintiff’s  injuries  after  gas
explosure.  Telephone  conversation  of  P’s  wife  (giving  notice  of  the
condition at her home)  with someone of the  Gas  Company  was  admitted:  W
placed a phone call to the #  received from the  operator,  someone  in  the
Company answered “Gas Company”, this man took her notice and  replied   that
it would be given immediate attention.  No personal identification was  made
for the person answering the call,  but  the  presumption  being  that  such
person is authorized to transact such business for the company.

D. HANDWRITING AND WRITING.
Rule 901.
A document’s author can be established by showing  that  it  was  signed  or
written in the hand of a particular person.  The document  can  be  authent.
by a W who can identify the signature  or  handwriting  as  belonging  to  a
particular person.
Expert -may base his testimony based solely on handwriting specimens from  X
that he examined.
Non-expert - testimony may not be based  on  comparisons  and  studies  made
directly for the litigation; he must testify that he saw X’s handwriting  at
some  time  before   the   litigation   began,   that   he   recognize   his
sign/handwriting.

Letter or telegram - may be authenticated by the  circumstantial  fact  that
it  appears  to  be  a  reply  to  a  prior  communication  and  the   prior
communication is proved.

Comparisons by the Jury.  Genuine Example.
Jury - exemplars may be shown to Jury, which is then  invited  to  make  its
own conclusion.
US v. Ranta:  D forged a government check  belonged  to  the  other  person.
Exemplars (def’s handwritings were submitted to  the  Jury  for  purpose  of
comparison  with  the  check.   Also  D’s  fingerprints  were   sufficiently
connected him with the forged check.  Expert witness was  not  called  -  no
error.  D could call expert if he  wished,  expert  was  made  available  by
government.
      Attorney must  establish  that  sample  (exemplar)  is  GENUINE.   The
simplest method - have the person whose handwriting is in question submit  a
sample of their writing and  testify  that  it  is  genuine.   The  decision
whether the sample is genuine and should be admitted for comparison  belongs
to the judge and not the jury.

Circumstantial evidence.
US v. McMahon:  D was convicted of conspiracy to commit extortion.   One  of
the evidence - note from D to W  regarding  blocking  the  plan.   Note  was
admitted under the circumstantial evidence: D was observed passing the  note
by another W, it repeated the conversation observed  already  in  the  court
between D and W (W was hard of  hearing,  that  is  why  we  can  understand
repeating it by D), note twice employer the personal pronoun “I”  suggesting
that the passer of the note was its author,  the  note  described  an  issue
raised by D later in the meeting and no one else  raised  this  issue.   All
these evidence supports a reasonable conclusion that the  note  was  written
by D, and thus was admissible as a party admission.
      Note:
Courts accept many types of circumstantial evidence to indicate  the  author
of a writing. Example: in drug conspiracy case for admitting notes  of  drug
activity: found in the trash outside D’s home;  notes  were  turn  from  the
notebook found inside D’s home; contained in the same  trash  bag  as  other
papers indicated D’s name; expert testified that handwriting  on  the  notes
was similar  to  D’s.   All  this  together  was  sufficient  circumstantial
evidence upon which a juror could find that the notes were D’s.

E. PUBLIC RECORDS.
A few types of documents are “self-authenticating”, b/c they are  so  likely
to be what  they  seem,  that  no  testimony  or  other  evidence  of  their
genuineness need be produced.
State provisions:  1)notarized deed or other, 2)certified copies  of  public
records; 3) books of statutes which appear to be  printed  by  a  government
body.
FRE  902:  recognize  these  3  classes  and  also  adds:  1)  all  official
publications (not just statutes); 2) newspapers or periodicals;  3)  labels,
signs,  indicating ownership, control  or  origin  (can  of  carrot  w/label
“Green Giant Co.”
Chapter 8. BEST EVIDENCE RULE.
BER concerns the best evidence  when  you  want  to  prove  content  of  the
writing recording, photograph.
1. Writing: a) what it is; b) content  of  writing;  c)  chattel,  that  has
   writing on it
2. Necessity for original when we  have  to  prove  a  content  of  writing,
   recording or photo.
3. Admissibility of duplicates as originals (unless there is a problem)
4. When we are excused from having to produce an original
5. Summaries.

BEST EVIDENCE RULE - might be called “Original Document  Rule”-  in  proving
the terms of writing, where the terms are  material,  the  original  writing
must be produced unless it is shown to be unavailable for some reason  other
than the serious fault of the proponent.
      BER applies only to writing (and equivalent recorded communications).
      3 main comoponents:
1. Original document:  original document must be produced, rather than  copy
   or oral testimony  about  document.   Carbon  copy  can  be  accepted  as
   original (Case law).
2. Prove terms of writing: rule applies only where what is to be  proved  is
   the terms of a writing (equivalent recorded communication such  as  audio
   tape of a conversation)
3. Excuse:  FRE 1004: BER doesn’t apply if the original is  unavailable  b/c
   it has 1)destroyed, 2)cannot be conveniently obtained, 3) in a possession
   of 3rd party. And Unavailability is not due to the serious fault  of  the
   proponent.

FRE 1001- 10008:
      FRE 1001: Federal Rules cover any writing,  recording,  or  photograph
whose contents are sought to be proved: (a)  letters,  words,  numbers,  set
down by hand/typewriting, printing,  photostating,  photographing,  magnetic
impulse, mechanical or electronic recording, or other.  (b)  Photographs…(c)
Original…(d) Duplicate… .
      FRE 1002: Statement of  Rule  to  prove  the  content  of  a  writing,
recording, or photograph, the original .. is required,  except  provided  in
these rules or by Act of Congress.

A. PROBING THE CONTENTS OF A WRITING AND RECORDING.
A1. Proving the Contents of a Writing.
      BRE only applies where what is sought to be proved are the “terms”  or
“contents” of the writing.
   1. Existence, execution, etc.: if all that is proved is  that  a  writing
      exists, was executed, or was delivered, the BER does not  apply  -  if
      you don’t need to prove what is the writing about.
   2. Incidental record: the  fact  that  there  happens  to  be  a  writing
      memorializing a transaction does not mean  that  the  transaction  can
      only be proved by the introduction of a writing. (Oral testimony of  W
      can be proved by oral  account  of  W  who  heard  testimony  even  if
      transcript exists; Live testimony re object of the photos.  But  if  a
      document truly  embodies  a  transaction  /contract/-  document  comes
      within BER and must be produced if available.

DeMacro v. Ohio Decorative Products, Inc.:  P, former  sales  representative
for Ds alleged that he had orally agreed to a “life-of-the-part” contract  .
P discussed with D the terms of employment.  They misunderstood  each  other
on  “post-termination”  commissions.   P  claims  that  he   would   receive
commissions on the parts placed with D’s group as long as D made  the  part,
that they had settled “life-of-the-part” agreement.  D claims that he  never
used the “life..” term and they never discussed the payment beyond  the  1st
year after termination.  P’s  attorney  then  draft  a  contract,  P  and  D
executed triplicate originals.  P retained one copy, 1- to Defendant, 1  -to
attorney.
      Held: D’s suit  rests  ultimately  on  the  contents  of  the  written
contract and BER does apply here.  Court persuaded that P  conducted,  in  a
good faith, a reasonably diligent search for  the  original  copies  of  the
contract, but w/out success, but in court’s estimation, provides  sufficient
proof that all copies were either lost  or  destroyed.  R.1004(1)  Originals
lost or destroyed applies - no error in the admission of this evidence.

A2. Writing Defined.
Seiler v. Lucasfilm, Ltd.: P claims that the creators of the movie have
infringed on P’s copyright in certain science fiction creatures.  P claims
to have created the characters before 1980, the year in which the movie
appeared.  P seeks to introduce drawings made after 1980, which he says are
“recreations” of the original characters.  P claims there were pre-1980
drawings, but that he has not been able to find them.  D objects on BER.
      Held: the drawings were “writings” as “other equivalent” within BER.
Since P lost or destroyed the originals in bad faith, FRE 10004(1) renders
the recreated drawings inadmissible.
      The Judge properly held the hearing without the Jury to determine the
drawing’s admissibility under FRE 1008: Court has to determine whether the
condition of the writing has been fulfilled.

A3. Chattels - Inscription.
      An object with inscription on it treated by Court on the  case-by-case
basis.  BER is more likely to be  held  applicable  if  the  inscription  is
complicated, if its precise(rather  approximate)  content  is  important  to
litigation.
      US v. Duffy: : D was  convicted  of  transporting  a  stolen  vehicle.
Witnesses, local PO and FBI agent, testified that the trunk of  the  vehicle
contained two suitcases, in one of them they found  a  white  shirt  with  a
laundry mark “D-U-F”.  D objected to the admission of  testimony  about  the
shirt and asked to require to produce the shirt  .   Trial  Judge  overruled
objection.  D appeal that admission of this testimony violated the BER.
      Held: The shirt  with  a  laundry  mark  (inscription)  would  not  be
considered a writing and would not be covered by BER.   This  is  a  chattel
and a writing.  Judge has discretion to treat the evidence as a  chattel  or
as a writing.

A4. Tape Recordings.
      When sound recording is introduced for  the  purpose  of  proving  the
recording’s contents, the BER applies  even  according  to  most  common-law
courts.  It occurs only when the recording is offered  for  the  purpose  of
proving its contents.
      US v. Howard:  D approached his old  friend(W)  to  help  him  to  buy
morijuana.  W informed  Drug Enforcement Agency and was asked to record  the
telephone conversations with D.  D’s side  of  the  taped  conversation  was
only partially audible and court permitted the monitoring agent  to  testify
as to its contents.  Agent testified that he was able  to  hear  both  sides
while it was taking place, not from the tape. D appeal.
      Held: government was properly attempting to prove the contents of  the
conversation, and that it could do so through testimony  whether  or  not  a
recording of the conversation had  been  made.   Government  didn’t  try  to
prove  the  contents  of  the  disputed  tape,  only  the  content  of   the
conversation.  It was in the discretion  of  the  court  in  permitting  the
testimony of the listening agent.
      Government was not required to offer a tape if they  didn’t  want  to,
testimony could be w/out a tape.

A.5. Pictures, Films and X-Rays
      Photographs, X-rays and similar products are generally not offered  to
prove their contents, so BER usually doesn’t  apply  regardless  of  whether
the item is deemed to be a “writing”.  But occasionally they are offered  to
prove its contents - majority rule is to broaden the  meaning  of  “writing”
to include such items within the rule.
FRE 1001(2): Photographs  include  still  photographs,  X-ray  films,  video
tapes, and motion pictures.
      But most of time those offered NOT to prove the consent - so  no  BER.
Contents of photo or movie  really  being  proved  in  the  following  case:
prosecution is brought for distributing or showing an  obscene  still  photo
or movie, or for selling a photograph that infringes a copyright.

US v. Levine:  D was convicted with conspiracy and  interstate  shipment  of
obscene films.  Print of Ball and Chain were released to Jury in Nov.75.   W
was asked to  testify  whether  the  scenes  from  the  release  print  were
identical to those contained in the work print he had shipped  in  Nov.  72.
W said he knew that it was the film  he  had  made  in  1972.   At  trial  D
objected to the authentication of movie as violating the BER, objection  was
overruled.
      D appeal and argue that admission  violated  BER  and  that  the  best
evidence that the 1072 work print is  obscene  is  the  work  print  itself.
Failure to introduce 1972 work  print  precluded  the  introduction  of  the
release print of B & C which is merely secondary evidence.
      Held:  Under FRE 1002 -“original required” the  1972  work  print  are
regarded as originals of  the  film.   Whether  a  motion  picture  film  is
obscene must be adjudged upon viewing it in its entirety.  The  contents  of
the film are what is sought to be proved.  Thus, the BER  standard  embodied
in FRE 1002 applies to the introduction of the  film.   W’s  testimony  that
the released print viewed during trial was substantially  the  same  as  the
work print he shipped in NY in 1972, provided sufficient authentication.
      Notes:
1. Generally the BER will not apply to films or videotapes that are  created
   to illustrate how an event occured.
2. X-Rays  - BER will apply to X-rays, b/c most  of  the  time  when  doctor
   tesifies to information gained from X-ray  -  condition  of  a  patient’s
   internal organs - are in contents, in issue.
            Exception to this  rule:  X-rays  which  contained  in  Hospital
records.

                       Analysis Of The Best Evidence:
      Whether, when a best evidence objection is made, the proponent of  the
challenged evidence is offering:
1. a writing or recording
2. to prove the contents thereof
            If the evidence does not constitute a writing  or  recording  or
if the proponent is not attempting to prove the contents  of  a  writing  or
recording, the best evidence objection will be overruled.
      2nd step:
      Whether the party  is  offering  a  duplicate  that  is  presumptively
admissible.  If party offering original or duplicate,  the  objecting  party
will have to show that there is a  genuine  dispute  about  authenticity  in
order to pursue a best evidence point.
      3 rd step:
      If a party is offering a writing or recording to  prove  the  contents
thereof and does not present an original or  a  duplicate,  the  party  must
justify the non-production of the original.  If party who satisfies  R.10004
(reasons why a party will not or cannot produce an  original  -  see  above)
may offer any form of secondary evidence that otherwise is admissible. .

                    B. DUPLICATES AND SECONDARY EVIDENCE.
B1.  Duplicates.
FRE 1003: A duplicate is admissible  to  the  same  extent  as  an  original
unless:
   1) a genuine question is raised as to the authenticity of the original or
   2) in the circumstances it would be unfair to admit the duplicate in lieu
      of the original.

US v. Sinclair: D was an  officer  of  the  Bank.   Bank  had  an  Insurance
Program which thought to guarantee that people would buy  an  adequate  auto
insurance for the car.  Under the Program if  person  didn’t  buy  insurance
the Bank would buy it for him/her.  D made an agreement with the broker  and
solicited the kickbacks from the  broker  and  accepted  a  porting  of  the
commission.
      In order to prove those facts  government  offered  evidence  included
copies of ITI’s tax returns and of D’s expense account reports to the  Bank.
 D made a motion in limine to exclude this evidence, but the court  admitted
and Ap. court affirmed.
      Held: Judge correctly in the ruling  of  the  motion  found  that  the
copies were not prepared  with  litigation  in  mind;  they  came  from  the
microfiche records  that  Bank  collects  in  the  ordinary  course  of  its
business.  Court examined the  omitted  portions  of  the  originals  before
finding that the omissions would not have affected  the  usefulness  of  the
duplicates.
      Notes:
When is genuine question of authenticity raised?
1. Photocopies of cancelled checks were inadmissible in  light  of  problems
   in matching copies of the back of the checks with copies of the fronts.
2. Court approved exclusion of a duplicate file copy of  a  deed  under  FRE
   1003, b/c the most critical part of the original conformed copy  was  not
   completely reproduced in the duplicate.

B2. Secondary Evidence.
Neville Construction  Co.  v.  Cook  Paint  and  Varnish:  Action  based  on
negligence and breach of  warranty.   Cook  Paint  marketed  and  then  sold
insulation to W, who was selling and installing  insulation.   W  contracted
with P to apply insulation.  Before making the sale  W  gave  P  a  brochure
from D’s Company describing the  properties  of  this  insulation.  Brochure
didn’t indicate that insulation should be covered by  paneling  or  building
material.
      Later fire destroyed the P’s building, because of the insulation  fire
spread rapidly destroying the building in a  minute.   P  received  judgment
for him.  D appealed that Court wrongly permitted  W  to  testify  regarding
the contents of D’s brochure.  P testified that brochure  was  destroyed  by
fire.  P attempted to  introduce  the  similar  brochure.   Court  sustained
objection and did not permit it on the basis that the exhibit had  not  been
included on the pretrial exhibit list.  P testified over objection that  the
literature described Coro-foam’s fire  retardance.   D  maintains  that  P’s
testimony was not the best evidence to prove the contents of D’s brochure.
            Held:  Because D successfully objected to the admission  of  the
similar brochure, it now cannot complain that  that  document  provided  the
only proper evidence of the contents of the brochure destroyed in the fire.
      Moreover, FRE recognize no degrees  of  secondary  evidence  to  prove
the contents of a writing that has been lost  or destroyed.  Court  properly
admitted the testimony of P as secondary evidence of  the  contents  of  the
brochure destroyed in the fire.
      Note:

                                C.  SUMMARIES
Don’t miss with demonstrative  evidence,  when  pieces  were  introduced  as
evidence already.
      If original writings are so voluminous that they  cannot  conveniently
be introduced into evidence and examined in court.,  most  courts  permit  a
summary to be introduced instead. FRE 1006.
   1. Sponsoring witness: The summary must be sponsored by a W  (usually  an
      expert) who testifies that  he  has  reviewed  the  writings  and  the
      summary and the summary accurately reflects the documents.
   2. Originals: Usually, the court requires  that  the  documents  be  made
      available for examination by opponent, and that  the  document  be  at
      least  generally  admissible  (but  the  document  need  not   to   be
      admissible).

   US v. North American  Reporting,  Inc.:   D  -President  of  Company  and
   Company  convicted  with  false  statements  and  mail  fraud.    D   -is
   stenographical company, which  provided  services  for  government.   FBI
   presented a summary chart  that  compared  the  hours  submitted  by  the
   employees on the time sheets and the hours submitted by President of  the
   company on the vouchers.  Vouchers overstated  the  hour  worked  by  the
   company’s employee.  The FBI summary was admitted and was not objected by
   D.
      D appealed on the evidence which was not admitted: D’s  collection  of
   personal memory, undocumented assertion that D was  working  on  a  given
   day, but didn’t bill for the time worked, etc.
      Held: J had ample basis for excluding the D’s char on the ground  that
   it was confusing under FRE 403.  J permitted  D  to  testify  as  to  the
   matters presented by the chart.  Chart by itself collected the results of
   the jumble of the D’s wishes,  guesses  and  undocumented  recollections.
   Nor error - to exclude the chart from evidence.
   Chapter 9.   OPINION TESTIMONY.: LAY OPINIONS and  EXPERTS`
                               A. LAY OPINIONS
FRE 701: Lay opinions - non-experts may not testify to their opinions.
However, a statement of opinion by a non-expert is admissible if:
1. The opinion is rationally based on the perception of the Witness (first-
   hand knowledge) and
2. The opinion will be helpful to a clear understanding of the W’s
   testimony or the determination of a fact in issue.

1. Rationally based on perseption.
US v. Dr. Hoffner: D was convicted of violating substances, pursuant to
prescriptions not issued for a legitimate med purpose.   D appeal that the
court didn’t allow three lay witnesses, who were doctor and 2 nurses, to
answer the question: “whether, in your opinion, D intended to issue these
particular prescriptions for a legitimate med. purpose. Testimonies were
excluded on the grounds: 1) lay person cannot render an opinion as to
whether an accused commit a crime; 2) can not testify as to another’s
specific intent in a particular instance.
      Held:  Affirmed.  In most instances, courts have been very liberal in
admitting W’s testimony as to another’s state of mind if W had sufficient
opportunity to observe the accused, examples when Ws was allowed to
testify:
   1) employee as  to D’s knowledge of the regulations, which he violated
      and charged for it
   2) eye W that policeman’s actions were motivated by ratial prejudice
   3) w that the goods, which D received were fraudulently obtained, because
      W and D discussed it together
In this case Ap. Court analyzes:
      Exception 1 - didn’t work:
In this case court accepted an offer to proof re Ws’ testimonies, w/out
jury - learning that Ws were not present in the examining room when
patients received prescriptions from D.  Court decided that Ws’ opinion
could not have been bases on any concrete facts but amount only to
speculative conclusions.
      Exception 2 re help to jury: app.
 Court couldn’t reevaluate the helpfulness of those testimonies, but found
no clear abuse of discretion by the trial court in excluding such
testimonies.

2. Helpful to the Jury.

a) Short-Hand Rendition
US v. Yazzie: D was convicted for sexual abuse of a minor (statutory rape).
16-year-old.  D admitted that he had sexual intercourse with V, but he it
was constentual. His defense was that he reasonably believed that the minor
was at least 16, but actually 15 ½ . V smoked sigarets, drove a car, used
make up.  To establish the reasonableness of his belief D called several Ws
who offered to testify that they believed that V was 16 to 20 years old.  V
didn’t testify whether she told D her age, she confirmed drinking beer and
smoking.
      Held: Ap. Court held that the district court improperly excluded lay
W’s testimony that the minor appeared to be at least Reversed.  In this
case Jurors could not assess how old the minor looked 2 years ago.  People
usually form an opinion re age from a combination of factors.  Here the
issue was whether D held an opinion and if so whether that opinion was
reasonable.  It is relevant that others also formed an opinion re V’s age
that was similar to D’s opinion.  Their testimony goes both to D’s
credibility and to the reasonableness of his belief.  Court deprived the
Jury of the most direct evidence available as to the age that the minor
reasonably appeared to be on the night on incident.

Krueger v. State Farm Mut.Aut.Ins.Co: Wrongful death action. P’s husband
was killed-injured by the uninsured vehicle driven by co-defendant. P
appealed that court refused to allow W (who saw the accident) to testify as
to driver’s ability to avoid accident, whether driver had enough time to
avoid hitting P once he ran into her lane of traffic.
      Held: Nor error, affirm.  W’s testimony would not have been helpful
to a clear understanding of his testimony or the determination of a fact in
issue.  Jury had evidence, including this W’s testimony, as to the
distances, speeds, and conditions which set the stage for the collision.
There was no need to provide the jury with a “short-hand rendition” of the
total situation.

b) Intent to Another.
US v. Rea: Ds was convicted for conspiracy to defraud the US, tax evasion.
Ds made an agreement with Getty to purchase gasoline w/out paying federal
taxes.  Government presented case by Ws’ testimonies.  One of W -
accountant, who also negotiated purchases of gasoline.  Ds appealed that
court allowed W-accountant to testify that D1 must have known he was
participating in a tax evasion scheme.
      Held:  This testimony was improperly admitted, but no reversal.
            Other post-opinion evidence appears to have provided a rational
basis for W’s opinion.   The evidence that W-accountant told D1 that D’s
company didn’t have license and despite this info D prepared paper which
insured that D’s company would not pay taxes on sales.   The testimony was
not helpful (under R.701).  It did no more than instruct the jury as to
what result it should reach on the issue of knowledge. Admission of this
opinion was an abuse of discretion.

US v. Fowler: D was convicted for conversion and unauthorized conveyance of
classified (secret) documents.  D was an employee of the Department of
defense for 26years..  Then after he retired he was hired by Boeing.  D
obtained secret documents from Dept.of Defense and delivered them to
Boeing. D converted some of documents by exctracting secret information.
Not D, not Boeing were authorized to receive those documents.   Government
presented the testimony of witnesses who laid an adequate foundation for
their testimony.  Each was familiar with the documents in issue, their
secret classification, the reason for classification, the nature of D’s
work for Dept., and the fact that people with experience as D has knew the
Dept. didn’t authorize the contractors to possess the documents.
      Held:  Opinion of those Ws were helpful to Jury in determining the
nature and extent of D’s knowledge about the documents and whether he acted
through negligence, accident, inadvertence, mistake, or confusion .  Their
opinion satisfy R.701, so court didn’t abuse its discretion by admitting
them.

c) Ultimate Issue.
Opinion on “ultimate issue”.  In any case some issues are more important
then others.  Prosecution for speeding - the rate of speed of the vehicle
would be an “ultimate issue”.
FRE 704: except as provided in subdivision “b”(dealing with the mental
state of criminal defs), testimony in the form of opinion or inference
otherwise admissible is not objectionable b/c it embraces an ultimate issue
to be decided by the trier of fact.  Therefore, under this rule, both
experts and lay Ws can give their opinions or inferences on ultimate issues
(Lay W must satisfy both requirements of R.701 -see above).

Kostelecky v. NL Acme Tool Industries, Inc.:  P’s claim for personal injury
while he was working was dismissed.  P appeal.   Ap.court found an error in
admitting the report, but affirm, b/c error is harmless.
      P injured his hand while working for his employer(D1) on an Oil rig,
operated by Oil Company (D2). P and D2 was hired by D1 to perform
specialized operations.   P argues that court erred in admitting into
evidence an accident report of P’s co-worker and eye W to the accident.  P
objects to statements in the report that the accident was caused by “the
injured’s own conduct” and that the accident could have been avoided if P
had listened to warnings and instructions given to him just prior to the
accident.
      Held: Court abused its discretion in admitting the accident report.
The case was tried on a theory of negligence.  Legal causation was very
much in dispute.  Therefore, in the context of this case, the opinion as to
causation served to do nothing more than tell the jury what result is
should reach.

                                 B. EXPERTS
Outline:
   1. Testimony of Expert.
   2. Basis of Opinion and Underlying Data.
   3. Ultimate Issue.

Expert testimony is admissible if the testimony:
   a) involves specialized knowledge (scientific or technical) -
      qualifications
   b) would help the trier of fact to understand the evidence or to
      determine a fact in issue

Scientific tests, theories and experiments.  The result of those tests may
not be introduced unless shown to be “scientifically valid” or “reliable”.

FRE 702. Testimony of expert: If scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a W qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an
opinion or otherwise.

B.1. TESTIMONY OF EXPERT.
a) Qualification-
expert must have knowledge or skill in a particular area that distinguishes
him from an ordinary person.
       Source of expertise: the expert must be qualified, qualification may
come form experience or education.

Berry v. City of Detroit:  P was awarded $6 million by Jury for the death
of her son, who was killed by PO.  Verdict was reversed and sent for new
trial by Ap.court.  The court admitted the testimony of P’s W-expert, who
was not qualified.  W’s testimony must have provided the basis for the Jury
to determine that the alleged failure of the Police Dept. to discipline
properly officers other than the PO,who killed, was the proximate cause of
PO shooting P.
      Held: W didn’t have the qualifications to testify as an expert and,
if he did, no proper foundation was laid. W had a degree in sociology,
master’s degree in education, took courses in criminal justice (now can’t
reveal what courses), started law career when received an appointment as a
deputy sheriff - no qualification was required, has to be elected; didn’t
have any training as a deputy sheriff.  Was fired twice during his deputy.
      W’s credentials do not qualify him to know any more about effect
claimed disciplinary shortcomings would have on the future conduct of 5,000
different POs than does any member of the jury.

b) Assist the Trier of Fact -
the expert’s testimony must concern a topic that is so specialized that
without the testimony, the jury would be less able to reach an accurate
conclusion.

US v. Whetted: D was convicted for sexual abuse of his daughter.  D
appeals. Ap.-reversed.
Court admitted testimonies of Expert Witnesses - Doctors A and B. Dr.A-
examined V by referral of the investigator, his findings confirmed that V
was sexually active.  Dr. B - pediatrician, who didn’t examine V.
Held: Reverse and remand for further proceedings.
A pediatrician’s testimony that an alleged child abuse victim was
believable and telling the truth was not admissible under R.702, b/c Jury
should decide W’s credibility.
Dr. A’s diagnosis of “repeated child sexual abuse” went too far, the basis
for the Dr’s diagnosis is unknown.  Dr. could not base his diagnosis solely
on V’s allegations of abuse, so Dr.  could not base his diagnosis on the
vaginal findings, b/c the vaginal findings encompas both consensual and
forcible penetration and Dr. could not objectively distinguish between the
two.  On the other hand, Dr.A could testify the anal findings were
consistent with sexual abuse.  To state V. was sexually abused based on the
anal findings, however, Dr. had to believe V’s statement about the anal
sexual abuse and her statement that she had no consensual anal intercourse.
 Dr. A. was not qualified to testify truthfulness. Jury has to assess V’s
credibility and to decide whether V came to have a dilated anus through
sexual abuse by her father.  Thus, Dr. A overreaching diagnoses of repeated
child sexual abuse was not admissible under R.702.

c) Scientific, Technical, or Other Specialized Knowledge
Where the expert’s testimony concerns a scientific test or principle, the
courts impose an additional requirement: the proponent must show that the
scientific test or principle is “scientifically valid” - this requirement
derives from Daubert v. Merrell.

      i) Novel Scientific Evidence
Frye v. US: Daubert  replaced doctrine from this case called “Frye
standard”: only scientific evidence that was generally accepted could be
admitted.
The Court upheld lower court’s refusal to admit the results of a lie
detector test offered by D in a murder case.
      Held: While courts will go a long way in admitting expert testimony
deducted from a well-recognized scientific principle or discovery, the
thing from which the deduction is made must be sufficiently established to
have gained general acceptance in the particular field in which it belongs.
      Notes:
Frye been used to keep out not only polygraph evidence, but also
hypnotically-induced testimony, psychological stress evaluations, voice
prints, and other techniques that the cours have mistrusted.

      In 1993 the Supreme Court rejected the Frye standard and substituted
a new “reliability” standard.  This ruling is binding Federal courts, but
not State courts which can use Frye if the wish.
Daubert v. Merrell Dow Pharmaceuticals, Inc.: 161, 526-531,536,538,541,544
Ps were minors born with serious birth defects, who claimed that these were
caused by Bendectin, a drug manufactured by D that their mothers took while
pregnant.  Ps tried to establish their case by using the testimony of 8
experts, who would have offered 2 main types of evidence that B-n had
caused the P’s injuries:
1)    analyses of test-tube and animal studies finding a link between B-n
and malformations;
2) unpublished “reanalyses” of previously published epidemiological
   studies, reanalyses’ finding a link between B-n and birth defects.  No
   published study found such a link.
      Trial court refused to allow the expert testimony, holding that the
only “general accepted” method could be admitted.
      Held: Supr.Court threw out the Frye generally accepted test.
Scientific evidence must now meet two requirements before it can be
admitted in federal cours:
1) the evidence must be shown to be “scientifically valid” - reliable  and
2) the evidence must “fit” at least one issue in the case, i.e., be
   relevant to the task at hand.
      Courts will consider the following factors in deciding whether the
test or principle is “scientifically valid”.  “Yes” -makes the test more
likely to be scientifically valid.  Those factors non-exclusive, courts can
consider other factors; none of the listed factors- necessary.
1. Whether it can be reliably tested;
2. Whether it’s been subjected to peer review and/or publication
3. Whether it’s got a reasonably low error rate;
4. Whether there are professional standards controlling its operations;
5. Whether it’s “generally accepted” in the field - became just one of the
   factor by Daubert..
6. Whether it was developed for purposes other than merely to produce
   evidence for the present litigation.
Notes:
1) Court said that all “science” must meet the new standard, including
   social sciences.
2) Judge has to decide whether the methodology used is reliable.
3) Jury has to determine whether the results of the tests are reliable.

  ii) Mathematical Proof
   A branch of mathematics called probability theory helps calculate the
   probability that a certain event has occurred.  All courts agree that if
   probability evidence is to be introduced at all, a proper foundation for
   it must be laid.  Solid evidence of the numerator and denominator used to
   compute the probabilities must be presented to the jury.
People v. Collins: Probability evidence was rejected mainly b/c of failure
to comply with the foundation requirements.
      D and his wife charged with robbery.  No eyewitnesses. Prosec.
produced 6 facts about Ds.: partly yellow auto, man had mustache, girl had
ponytail, girl -blond hair, man-black, with beard; robbers-interracial
couple in a car.  Math professor was testified: only one chance in 12
million that any given couple would possess these 6 factors. Prosec: that
the individual probabilities he had assigned were "conservative", and that
the chance of any couple other than Ds having these same characteristics
was probably more like "one in a billion". Ds were convicted.
      Held: Reversed.  Court seemed to rely most heavily of the fact that
there was no evidence relating to any of the six individual probability
factors used by the prosecutor (e.g., that only 1 in 10 auto is partly
yellow).  Court was troubled by two other considerations: 1)no showing that
the factors were "independent" of each other, a requirement for the
"product" method of computing probabilities  (if man has mustache, he will
more likely have beard); 2) the jury would be tempted to "accord
disproportionate weight" to the resulting figure, instead of concentrating
on the critical issue: "Of the admittedly few such couples (having all 6
factors) which one, if any, was guilty of committing this robbery?"  Court
attached Appendix showing that 40% chance that at least one more couple in
L.A.  area had the same characteristics.

      Courts increasingly accept probability evidence where it supplies a
scientifically reliable way of estimating the probability that a disputed
event occurred.
      In a paternity case, most courts will now accept the results of
analysis of genetic markers, whereby an expert testifies that not only are
D's genetic markers consistent with those of the child, but only,  one
adult American male out off 3,000 would have markers consistent with those
of the child.
      In a rape case some courts would allow evidence that only one in
10.000 males would have semen containing genetic markers consistent with
the markers found in the semen in the V, and that D's semen has such
markers.

Will not be on the exam till Hearsay.

Kammer v. Young:  Appellant Kammer was found to be the father of the child.
      P - didn't have any intercourse in the year of the baby was born, D -
last time had intercourse with P 15 months before baby's birth.  Father was
determined to be the biological father of child  putative father appealed.
      Held: (1) admission of blood test evidence was in compliance with
statute;  (2) admission of blood test evidence did not violate putative
father's due process rights;
      Statute which governed admission of paternity test results and
required that  "statistical probability of alleged father's paternity [be]
at least 97.3%" was to be construed within context and meaning as used in
blood testing community, rather than by statisticians;  thus, "statistical
probability," as contemplated by legislature was to utilize statistical
formula to convert paternity index ratio to percentage of probability or
plausibility of paternity.
      Scientific methods, which incorporated both Bayes' Theorem and .5
prior probability factor in formulating probability percentage of paternity
from paternity index did not deprive putative father of due process rights;
laboratory's calculations met prerequisites for admissibility set forth in
statute, and thus blood test evidence was admissible, but it was neither
conclusive nor did it create presumption and thus, putative father was free
to present nongenetic evidence which not only disputed generally his
paternity but constituted attack upon use of .5 prior probability figure.
      Putative father was not deprived of right to fair and impartial jury
in paternity trial on basis that statistical approach to paternity blood
test results distracted jurors from weighing evidence and determining
ultimate credibility of parties;  statistical approach was required by
statute, and though percentage obtained of 99.78% was strong evidence, it
did not prevent jury from considering evidence presented as to putative
father's nonpaternity.  >

      DNA Testing:  powerful and well-accepted method of tying a blood,
semen or tissue sample to a particular person.

B.2. BASIS OF OPINION AND UNDERLYING DATA.
Basis for opinion: the expert’s opinion may be based on any of several
types of underlying facts or data, including:
   a) the expert’s first-hand knowledge
   b) facts told to her outside the trial  or by listening the other Ws at
      trial before testifying
   c) hypothetical posed to her during the trial (expert know nothing about
      the facts, but he may give factual assumptions in the form of a
      hypothetical question, and may then express his opinion re conclusion
      to be draw from assumed facts).

FRE 703: even inadmissible evidence may form the basis for the expert’s
opinion if that evidence is “of a type reasonably relied upon by experts in
a particular field in forming opinions or inferences upon the subject”.

FRE 705: provides that expert need not make prior disclosure of the
underlying facts or date, except that the court may in a particular case
require him to do so, and in any event the x-examiner may require the
expert to state these underlying facts or data.

Facts Reasonably Relied Upon.
This facts need not consist of admissible evidence, so long as they are of
a type reasonably relied on by experts in the particular field.

Thomas v. Metz:
Feb. 27, 1986.
Patient brought medical malpractice action.  Judgment on jury verdict in
favor of physician.  Patient appealed.
      Held: Affirmed.
1) experts disclosed basis for their opinions, experts' disclosure of
   records reviewed in making conclusions was sufficient disclosure of
   basis of opinions.  Rule 705.
2) Injured patient failed to show prejudice or effect on jury's verdict as
   result of experts' reliance on treating physician's deposition and
   depositions of other physicians in forming expert opinion where experts
   also relied on hospital records, personal notes of physicians, and x-
   rays.
3) Trial court ordinarily has discretion whether to allow voir dire of
   expert witness or whether to require attorney to wait until cross-
   examination to attack credibility of expert.  Rule 702.

B3. ULTIMATE ISSUE
Courts generally allow a psychiatrist or psychologist to testify as an
expert on the mental condition of a criminal D.  Court try to keep the
expert from crossing over into areas that are properly the province of law
rather than medicine (whether D knew right from wrong).
FRE 704(b): provides that "no expert W testifying with respect to the
mental state or condition of a D in a crim.case may state an opinion or
inference as to whether the D did or didn't have the mental state of
condition constituting an element of the crime charged or defense thereto.
(D claims insanity, Psych would be permitted to say that D is a
shizophrenic, but will not be allowed to say that this condition prevented
D from appreciating the wrongfulness of his conduct, now the substantive
federal insanity standard).
      Courts hesitate to allow expert psych testimony concerning the
reliability of other W's testimony. Thus evid that a particular eyewitness
identification is likely to be unreliable for psych reasons, or that V is
probably telling the truth, b/c she shows the signs of Rape Trauma
Syndrome, will be rejected by many courts.

State of Mind.
US v. Thigpen: D was convicted of armed bank robberies.  Another defendant
was convicted of weapons charges.  Ds appealed, and appeals were
consolidated.
Held: Affirmed.
Expert testimony as to whether schizophrenia implies that victim of it
would be unable to appreciate nature and quality of his acts concerned
general effect of schizophrenic disorder, explained disease and its typical
effect, and, therefore, was admissible. Rule 704(b)
                Expert testimony concerning nature of defendant's mental
  disease or defect, including typical effect on person's mental state, is
                          admissible. Rule 704(b).
                        Chapter 10.  HEARSAY DEFINED.
FRE 801: Definition:
a) Statement.  - oral or written assertion or nonverbal conduct of a
   person, if it is intended by the person as an assertion.
Declarant - person who makes a statement
Hearsay - statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.

FRE 802: Hearsay Rule:
Hearsay is not admissible except as provided by these rules or by other
rules prescribed by the Supreme Curt pursuant to statutory authority or by
Act of Congress.
Hearsay:
1. Statement
Made by Person/Declarant
Other than testifying
Offered to prove truth of the matter asserted
AND THEN ASK IF IT IS RELEVANT, AND DO BALANCING TEST.
Sample:
Issue: Did Prof. Noble talk to anyone in a class re Sheff’s lecture.
W: Prof said “I talked to Sheft” - this is clear hearsay
W: Prof said “I can’t believe that my friend would tell my class about me
going to the bathroom”. - it is not offered for the truth of the matter
asserted, so it is not hearsay, it is showing Prof’s thinking about,
doesn’t answer the straight question.

Four main dangers, b/c all of these relate to the fact that the person
making the out-of-court statement is not available for cross-examination
1. Perception - inaccurate perception
Narration - ambiquity
Sincerity (hones) - insinserity
Memory- incorrect memory

A.  DECLARANT.
Must be a person.  Animal can not be a declarant.

B.    TRUTH OF THE MATTER ASSERTED.
Statements or conduct that are not offered to prove the truth of the matter
they asset are
NOT HEARSAY:
a) verbal acts - statement which gives rise to legal consequences when
   offered to show those legal consequences;
b) effect on hearer or reader - statement offered to show that the listener
   knew or didn’t know of something;
c) declarant’s state of mind - statement offered to show the declarant’s
   state of mind (including knowledge and intent);
nonassertive conduct - conduct that is not intended as an assertion;
assertion and assertive conduct offered for different purpose - to prove
the truth of a matter other than the one asserted.

B1. Independent Legal Significance.
B1.1 Oral Contracts
The statement is a “verbal act”, i.e., an operative fact that gives rise to
legal consequences.
      O says to W : If you pay me $25 I will have sex with you.  If O
prosecuted for solicitation, her statement will not be hearsay, b/c it is
not offered to show its truth.

Creaghe v. Iowa Home Mut.Cas.Co: Nov. 4, 1963.
 Action against insurer by party who had recovered unsatisfied judgment
against alleged insured.
      Held that where insured expressed desire to cancel policy which could
not be canceled without giving ten days' notice and more than ten days
elapsed between giving of such notice and accident in which plaintiff was
injured by truck referred to in policy, policy had been canceled and
insurer was not liable.
 Affirmed.
      Testimony is not "hearsay" when it is to prove only that statement
was made and not truth of statement.  Testimony by witness as to alleged
oral agreement of others to cancel policy was not inadmissible under
hearsay rule.

B1.2 Slander and Perjury
US v. Anfield:  Perjury can be proved by showing that D said two different
statements under oath: grand jury statement and trial statement.
      The hearsay rule does not operate to render inadmissible every
statement repeated by a W as made by another person.  It doesn’t exclude
evidence offered to prove the fact the statement was made, rather than the
truth…  The prosecutor was not attempting to prove that there was in fact a
camera and single girl in the bank; those facts were not in issue at
appellant’s trial.  Rather, the prosecutor’s statement indicate only that
the appellant made inconsistent statements under oath.  His testimony was
independently relevant.

B1.3 Threats and Fraud
US v. Jones: Defendant was convicted of threatening the lives of a judge
and prosecutor at sentencing hearing, and he appealed.
      In prosecution for threatening the lives of a judge and prosecutor at
sentencing hearing, admitting into evidence as a jury exhibit only the
language of the sentencing hearing transcript containing the actual threats
was not violative of federal rule dealing with exceptions to the hearsay
rule, since the statement at issue was paradigmatic nonhearsay.  This
statement was not offered to prove the truth of the matter asserted.  The
statement in issue is paradigmatic nonhearsay, which contains threats made
against officers of the court.

B2. Notice
Vinyard v. Vinyard Funderal Home:
P slip and fell on D’s parking lot.  Theory: D took no steps to correct the
problem. P offered as evidence that people complained that the surface was
slippery when wet.  W: Several people said it was slick.  It would be
hearsay and not admissible if  offered only to prove the fact that the area
was slick.  But there was an issue of D’s knowledge of slickness.  Evidence
of complaints of slickness made to D was relevant to the material issue of
D’s knowledge.  The fact that it has been made is relevant, the hearsay
rule does not apply, but the statement may be shown.  To make her case P
has to show that D knew about slickness, this knowledge came to D through
the complaints, so those evidence is admissible.

B3. State of Mind of the Listener.
Generally a statement offered to show its effect on the listener/reader
will not be hearsay.  If Statement is offered to show that the listener or
reader was put on notice, had certain knowledge, had a certain emotion, or
behaved (un)reasonably , this WILL NOT be hearsay.

McClure v. State:  D was convicted with the offense of murder of  his wife.
 D wanted to show that W had sex with his wife.  And D testified also that
CH told him that the deceased had sex w/ C and D.  Court wrongly refused to
allow D to testify as to what CH told him on the hearsay ground.  Court
should have allowed D to testify, b/c this testimony would have shown he
had knowledge of the deceased’s indiscretions w/ C and D.  And also Court
should allow to testify all Ws who had sex with D’s wife.  Those evidence
would show D’s state of mind, not regarding the truth of the matter
asserted.  NOT a hearsay.

B4. State of Mind of the Declarant.
Statements introduced to show the state of mind of the declarant are not
offered for “the truth of the matter asserted” and thus are NOT hearsay.
      Thus a statement offered to show the declarant’s knowledge , sanity
or emotion (fear) are not hearsay.  Exception: statements evidencing states
of mind.

Betts v. Betts:  D appeals from a judgment modifying a divorce decree which
have awarded her custody of the children.  The partie’s daughter was in a
foster home.  Her foster mother testified that the girl said about her
mother’s husband: “He killed my brother and he’ll kill my mom too”.  Use of
his testimony doesn’t violate the hearsay rule.  The statement of the child
was not admitted to prove the truth of the assertions she made, but show
the mental state of the child at the time of the child custody proceedings.
      Evidence of  the statement showing the declarant’s state of mind - is
not hearsay

B6. Circumstantial Use.
US v. Amahia:  Fraudulent marriage. D charged with conspiracy to arrange a
fraudulent marriage with the intent to procure an Immigrang visa and
Permanent US residency status.
      D testified that he didn’t give $500 to W(wife?)  to induce her to
marry him, that marriage was for love.  Government introduced statement
made by C, relayed by co-conspirator J to W, about the availability of cash
for entering into weddings with Nigerians.  W asserts that the reception of
that evidence amounted to double hearsay.
      Held:      W’s testify  recitation of the conversation between
herself and J - restatement of an earlier conversation between J and C - it
is not inadmissible double hearsay (as per D), b/c it shows why W did what
she did as a result of the conversation, rather than showed the truth of
the matter asserted in that conversation.
      In this case we are not concerned with the truthfulness of the
statement, whether it is true co-conspirator C wanted names from co-
conspirator Jurisdiction of women who would marry Nigerians for money.  The
Value of the statement is in its explanation of why W put herself in a
position to marry D, and it is the fact of the statement, not its truth,
which is important.
C.   STATEMENT.
C1. Assertive Conduct.
Assertive conduct is treated as if it were a “statement”, so that it can be
hearsay.

C1.1 Response to Question with Action
Stevenson v. Commonwealth:  PO asked the D’s wife if D changed clothes when
he arrived home on either the night of the question.  As a result of the
answer PO asked her to give him the clothes worn by D when her returned
home. D’s wife took PO to another address and presented him with a shirt.
This is non-verbal conduct of a person intended by him as an assertion and
offered in evidence to prove the truth of the matter asserted falls within
the ban of hearsay evidence.  D’s wife was intended as a nonverbal
assertion for the purpose of showing that the shirt not only belonged to D
but was in fact worn by him on the day of the crime.  Accordingly, the
officer’s testimony relating to the shirt was inadmissible as violative of
the hearsay rule.

C2. Non-Assertive Conduct and Words.
Conduct that is not intended as an assertion will never be hearsay.
      a) Non-assertive verbal conduct: even a verbal statement will not be
hearsay.
      b) Non-verbal conduct:  not a hearsay.

C2.1 Implied Assertions.
Assertions not offered to prove truth of matter asserted:  if an assertion
is offered to prove another assertion that is implied by the former, there
is a hearsay problem only if the person making the assertion was thinking
about the proposition now sought to be proved.

US v. Zenni:  The prosecution of illegal bookmaking.  Government agent (GA)
was doing authorized search for evidence of bookmaking activities at D’s
home.  GA answered the telephone, where unknown callers stated directions
for the placing of bets.  Government proposed to introduce this evident
that the callers believed that the premises were used in betting
operations.
      Held: In this case those statements were not offered for the truth of
the words, they are offered to show the declarants’ belief in a fact sought
to be proved.   These persons didn’t intent to make an assertion about the
fact sought to be proved or anything else.  As an implied assertion, the
proffered evidence is expressly excluded from the operation of the hearsay
rule.

C3. Silence.
A person’s silence will be treated as a “statement”, and thus possibly
hearsay, only if it is intended by the person as an assertion.
      a) absence of complaints - can usually be admitted w/out hearsay
problems.
      b) silence in face of accusation: person’s silence in the face of an
accusation against him, where the silence is offered to show that the
accusation was true, usually will be held to be intended as an assertion,
and thus hearsay.

Silver v. NY Central Railroad: P was a passenger of the train where
temperature was very low caused her suffer a disease.   Porter of train was
allowed to testify as to the temperature conditions, but was not allowed to
testify that 11 other passengers didn’t complain.
      Held: Evidence as to absence of complaints from customers other that
the P has been admitted in four cases: all relating to breach of warrant in
sale of food.   It should not be admitted unless, in addition to the fact
that no complaints were made, there is evidence of circumstances indication
that others similarly situated ate and had opportunity for complaining.
In this case, should the circumstances of the P and of the other passengers
as to exposure to the cold be shown to be substantially the same, the
negative evidence that none of the others spoke of it to the porter might
properly be admitted - if shown that passenger could complain only to
porter, not somebody else, porter was available for complaints.

D. HEARSAY OR NOT HEARSAY?
US v. Check:  Government wanted introduce to evidence the testimony of the
detective, who while undercover met with Calin (co-conspirator) of the drug
dealings, who refused to testify at the trial.  Prosecutor employed method
of questioning to avoid hearsay problem as follows: “Without telling us
what Mr. Cali said to you, what did you say to him?”.  In response PO told
the prosecutor and jury what he had purportedly said to Cali..
      Held:  district court’s failure to exclude damaging hearsay testimony
constituted prejudicial error, judgment reversed.  Challenged portions of
PO’s testimony were inadmissible hearsay even if they could be regarded as
being a literal recitation of PO’s
own prior out-of court statements.  This testimony is IRRELEVANT, b/c
showing us only what PO wants us to show.

      Always make a test:
1.  Statement: oral/written or conduct, if conduct -assertive or not-
asertive
      If can’t tell assertive or not assertive - make conclusion that not-
assetive
2.    Out-of-court or not
3.    Made by person or not, person is other than testifying or not
4.    Is it offered to prove the truth of the matter asserted.  How is it
relevant?  What can make it more probable?  Discuss 4 dangers: perception;
narration, sincerity, memory.  If  it is relevant, is there unfair
prejudice?

                             Julie Blinkina

                                PROBLEM 10-1
(1) Defendant:         Objection.  Hearsay.
(2) Plaintiff:         This testimony is not offered to prove dangerous
              conditions, it is offered to prove if the defendant could
              have known about the banana split on the floor.  It is not
              offered to prove the truth of the matter asserted. The fact
              that banana split was there for some time is relevant, so
              hearsay rule does not apply and statement may be shown.  This
              is not a hearsay.

                             Also this statement is the statement of the
              defendant’s employee and it is not hearsay under the Rule
              801(d)(2)(D). It is the admission of the party opponent and
              under the above named Rule the statement is offered against a
              party and is “a statement by the party’s agent or servant
              concerning a matter within the scope of the agency or
              employment, made during the existence of the relationship is
              not hearsay”.
(3) The Court:         Overruled.

(4) Defendant:         Objection.  Hearsay.
(5) Plaintiff:         The statement in issue is typical nonhearsay, which
              contains threats made against the plaintiff. Offered to prove
              a threat by itself,  not the words which were said by another
              employee to plaintiff.  These are words of legal significance
              under the substantive law of assault.  So, it was not offered
              to prove the truth of the matter asserted.  Not a hearsay.
(6) The Court:         Overruled.

(7) Defendant:         Objection.  Hearsay.
(8) Plaintiff:         It proves tshe state of mind of the listener,
regardless the truth of the

                                                   matter asserted.  This
is not a hearsay.
 (9) The Court:        Overruled.
(10) Defendant:  Objection.  Hearsay.
(11) Plaintiff:        This evidence showing the declarant’s state of mind.
 It is  not offered to
                             prove the truth of the assertions the
plaintiff made, but show his mental
                             state.  This is not a hearsay.

(12) The Court:  Overruled.

(13) Defendant:  Objection.  Hearsay.
14) Plaintiff:         The answer of the Plaintiff concerning the
   negotiations regarding the
                             settlement is the admission by the Plaintiff
and will not be a hearsay
                             under the Rule 801(d)(2)(A) as the statement
which offered against the
                             Plaintiff and “is a party’s own  statement.
(15) The Court:  Overruled.

(16) Defendant:  Objection.  Hearsay.
17) Plaintiff:         This testimony offers the words of legal
   significance under the
                             substantive law of defamation, because they
show publication
                             regardless of the truth of the statement.
The Court:  Overruled.
CHAPTER 11.  HEARSAY EXCLLUSIONS.

11-A. PRIOR STATEMENTS BY A WITNESS.

FRE 801 (d)(1): Statement is not a hearsay if the declarant testifies at
the trial or hearing and is subject to X-examination concerning the
statement, and the statement is
(A): inconsistent with the declarant’s testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition
(B): consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or
improper influence or motive.

11-A.-1. Inconsistent Statements under Oath.
Common Law: can offer inconsistent statement to prove the W’s credibility,
but can’t be used to prove that prior inconsistent statement was true.
US v. Livingston: D convicted in robbery of a post office.  Trial court
improperly instructed the jury regarding the use of prior inconsistent
statements.  Government’s Ws testified at trial about the events on the day
of the robbery and about the cashing and attempted cashing of a number of
stolen money orders.  Prior to trial each W gave at least one sworn
statement to postal inspectors.  W. gave statement that D had discussed and
joked about several aspects of the robbery, but on trial she denied or
failed to recall her conversation with D.  Judge in his instructions to the
jury said that they can use one of the statements which they think
contained the truth. contained.
      Held: The statement of W is inadmissible to prove the truth of
matters contained within it, because it is not satisfy the Rule requirement
of  given it at “trial, hearing, or other proceeding”.  It was given to
postal inspector, who is not an independent officer; no recording were
made, the interrogation occurred at W’s house, no rights were afforded to
W. Such statement can be admitted only for purposes of impeaching W’s
credibility.

Prof: Remember about defects: perception, memory, sincerity, narration
11-A.-2. Allegations of Recent Fabrication.
TOME v. US:
      D was convicted by the Dis.Court of aggravated sexual abuse of his
daughter, and he appealed.  The Court of Appeals affirmed. Certiorari was
granted.
      Tome was charged with sexually abusing his daughter A.T. when she was
four years old.  The Government theorized that he committed the assault
while A.T. was in his custody and that the crime was disclosed while she
was spending vacation time with her mother.  The defense countered that the
allegations were concocted so A.T. would not be returned to her father, who
had primary physical custody.  A.T. testified at the trial, and, in order
to rebut the implicit charge that her testimony was motivated by a desire
to live with her mother, the Government presented six witnesses who
recounted out-of-court statements that A.T. made about the alleged assault
while she was living with her mother.  The District Court admitted the
statements under, inter alia,  Federal Rule of Evidence 801(d)(1)(B.)
      Jus.Kennedy Held: Reversed and remanded. Evidence of child's prior
consistent out-of-court statements regarding her father's alleged abuse was
not admissible to rebut implicit charge that child's testimony was
motivated by her desire to live with her mother, to the extent that out-of-
court statements postdated alleged improper motive.-Rule 801(d)(1)(B).
11.-A.-3.  Prior Identifications.
FRE 801(d)(1)(C):  A statement is not hearsay if prior statement by
witness. The declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is (C)one of
identification of a person made after perceiving the person.
Subject to Cross-Examination.
      US v. Owens: Defendant was convicted in the US Dis Court of assault
with intent to commit murder, and he appealed.  As a result of injuries
suffered in an attack at a federal prison, correctional counselor JF's
memory was severely impaired. Nevertheless, in an interview with the
investigating FBI agent, V described the attack, named respondent as his
attacker, and identified respondent from photographs.  At trial V
testified, inter alia, that he clearly remembered so identifying
respondent.  On cross-examination, however, he admitted that he could not
remember seeing his assailant, seeing any of his numerous hospital visitors
except the FBI agent, or whether any visitor had suggested that respondent
was the assailant.  Defense counsel unsuccessfully sought to refresh his
recollection with hospital records, including one indicating that he had
attributed the assault to someone other than respondent.
      US Court of Appeals reversed and remanded, but erred in holding that
R. 801(d)(1)(C) did not apply to Victim's identification statement because
of his memory loss.  Certiorari was granted.  The Sup Court Reversed and
remanded.
      Held: (1) defendant's confrontation rights were not violated by
introduction of victim's out-of-court identification of defendant as his
attacker, even though victim admitted that he could not remember seeing his
attacker or whether any visitor at hospital had suggested that defendant
was his attacker (assailant)
      (2) victim's out-of-court identification of defendant as his
assailant was admissible as nonhearsay, in prosecution for assault with
intent to commit murder where victim was present and available for cross-
examination concerning statement, even though victim admitted that he could
not remember seeing his assailant. under the Rule 801(d)(1)(C).
      Witness is ordinarily regarded as "subject to cross-examination" when
he is placed on stand, under oath, and responds willingly to questions.
801(d)(1)(C)

11.-B.  ADMISSION BY A PARTY.
FRE 801 (d) (2): (d) Statement is not hearsay if (2) admission by party
opponent.  The statement offered against the party and is
A) the party’s own statement, in either an individual or a representative
   capacity
B) a statement of which the party has manifested an adoption or belief in
   its truth
C) statement by a person authorized by the pary to make a statement
   concerning the subject
D) a statement by the party’s agent or servant concerning a matter whithin
   the scope of the agency or employment, made during the existence of the
   relationship
E) a statement by a coconspirator of a pary during the course and in
   furtherance of the conspiracy.

11.-B.-1.  Own Statement.
State v. Johnson: D was convicted in the County Court of willfully failing
to deposit certain withholding taxes with the State.  Cir. Court, affirmed.
 D. appealed.
      Held: In prosecution for willfully failing to deposit certain
withholding taxes with State, D's statement to an accountant that he had
failed to deposit withholding taxes was an 'admission by a party opponent,'
was not hearsay and was admissible
      However, further statements by defendant that he was concerned about
his failure to pay withholding taxes, but that he did not control funds
from which such payment could be made, were self-serving and were properly
excluded as hearsay.

11.-B.-2. Adoptive Admissions.
FRE 801 (d)(2)(B): Statement is not hearsay if (2) admission by party
opponent.  The statement offered against the party and is
(B) a statement of which the party has manifested an adoption or belief in
its truth

11-B-2-1.  By Conduct.
US v. Beckham: D was convicted of dealing with drugs.  He appeals that
hearsay testimony was improperly introduced at his trial.
       Few POs noticed what appeared to be several persons engaged in drug
transactions in the backyard of a house.  One of the PO, saw two people in
the yard:  D and Monroe  As Officer approached the yard, M inquired, "Are
you looking?"  Officer said yes, and M asked if he wanted "a fifty," which
the officer took to mean a fifty dollar rock of crack.  At trial, PO did
not state that he had observed D or Monroe in the yard prior to crossing
the street, he walked into the yard, and stood directly in front of Monroe,
who reached into her pants pocket and produced a bag containing a drug.  D
remained seated two feet away.  PO inspected the rock and asked Monroe if
he could purchase another fifty.  Monroe replied, "I only had one, but you
can get another from my buddy."  At that moment, D got up from his chair,
walked past PO and M to the bench on which M was seated, and removed a bag.
 As D began to open the bag, PO identified himself as a police officer and
arrested both M and D. The bag was found to contain drug.
      Companion's statement could be used against defendant as an adoptive
statement as long as defendant manifested an adoption or belief in its
truth;  defendant must have understood and unambiguously assented to the
companion's statement, but his understanding and assent could be
established through conduct as well as words. Rule 801(d)(2)(B).
      When D got up from his chair, walked over to a stash of crack that
was packaged for distribution, and began to open it immediately after
defendant's companion told PO that the officer could get another rock of
crack from "my buddy," defendant indicated his endorsement of his
companion's statement and it was admissible under the adoptive admission
exception to the hearsay rule. U.S.C.A.

Bill v. Farm Bureau Life Insurance Co.: Action on life policy which would
be voided by suicide.  Judgment for the parents, who were the
beneficiaries, the insurer appealed.    Held: Reversed and remanded.
Testimony of the medical examiner that the insured's father, in the
presence of the mother who indicated no disagreement, laterally shook his
head (as a negative sign) in reply to a question whether the father had any
doubt that his son committed suicide, should have been admitted as
admission against interest and as tending to counter parents' testimony
that they had no reason to suppose death was suicide.  These testimony were
held in the chambers as an offer to proof.

11-B.-3. Authorized Admissions and Admissions by Agent
FRE 801(d)(2) (C)and (D):: (d) Statement is not hearsay if (2) admission by
party opponent.  The statement offered against the party and is
C) statement by a person authorized by the party to make a statement
   concerning the subject
D) a statement by the party’s agent or servant concerning a matter within
   the scope of the agency or employment, made during the existence of the
   relationship

11-B-3-1. Distinction Between the Two Rules
Mahlandt v. Wild Canid Survival & Research Center, Inc. Child was bitten(?)
by wolf.  Defendant proved to Jury that child’s injuries were not from the
bite, but from the fence and … .  Jurie’s verdict for D.  Trial court
didn’t admit as evidence 3 statements as hearsay:
1) P offered as evidence (through offer to proof) the statement that D2
   (Director of Ed. department of D1, who kept wolf at his home) told
   President of D1 (Corporation): “Wolf had bit a child that day”
2) D2 left a note to D1 “Call me.  Wolf bit a child that came in our back
   yard. All has been taken care of.  I need to convey what happened to
   you.”
3) The abstract of the minutes of the D’s meeting reflect that there was a
   “great deal of discussion … about the legal aspects of the incident of
   Wolf’s biting the child”.
      Held: Statement made by D2 were admissible under 801(d)(2)(D) against
D1 as made by D2 when he was an agent or servant of the D1 and they
concerned a matter within the scope of his agency, or employment - his
custody of Wolf, and were made during the existence of that relationship.
As to the #3 - admissible under 801(d)(2)(C) as the conclusion of the
officers of the corporation.
      But there was no servant, or agency, relationship which justified
admitting the evidence of the board minutes as against D2.  None of the
conditions of 801d2 cover the claim that minutes of a corporate can be used
against a non-attending, non-participating employee of that corporation.
The evidence was not admissible as against D2.

11-B-3-2. Within the Scope of the Agency or Employment.
Hill v. Spiegel, Inc.:  P sued D for terminating his employment on basis of
age. Judgment for P.  D appealed.  Ap.Court remand.
      Testimony of a former D’s manager employed under P’s supervision
regarding his conversation with other employees concerning P’s discharge,
that he was told by them that P had been discharged b/c of his age and
income.
      Held: This testimony cannot be admitted, b/c there was no evidence
that those employees were involved in the decision to discharge P, so there
was no basis for finding that the statements of these declarants concerned
“a matter within the scope of their agency”.

11-B-4. Co-Conspirators.
FRE 801(d)(2)(E): FRE 801 (d) (2): (d) Statement is not hearsay if (2)
admission by party opponent.  The statement offered against the party and
is
(E) a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.

11-B-4-1. Existence of Conspiracy.
Bourjaily v. US:  D was convicted of conspiring to distribute cocaine and
possession of cocaine with intent to distribute, and he appealed.  Crt of
App affirmed.  Supr. Court held: Affirmed.
1. Existence of conspiracy and defendant's participation in it need be
   proven only by preponderance (majority) of evidence in order for
   statements of coconspirator to be admitted.
Existence of conspiracy and defendant's participation in it was
   sufficiently established to permit admission of statements of
   coconspirator by evidence that coconspirator told undercover agent that
   he had a "friend" who had agreed with him to buy a kilogram of cocaine
   and to distribute it, that the friend would be at the hotel parking lot,
   and that the friend would accept cocaine from the agent's car and by
   evidence that defendant appeared at the hotel parking lot at the
   prearranged time and accepted the cocaine. Rule 801(d)(2)(E)

2. In making preliminary factual determination as to existence of
   conspiracy and defendant's participation in it when ruling on objection
   to admission of coconspirator's statements, court may examine the hearsay
   statements sought to be admitted

3. Court is not required by confrontation clause to make an inquiry into
   the independent indicia of reliability of a statement;
   There is no Sixth Amendment requirement that there be independent indicia
   of reliability for admission of coconspirator's statements over objection
   based on confrontation clause.  Rule 801(d)(2)(E)

4. Determination that conspiracy existed and that defendant participated in
   it was supported by the evidence. under the coconspirator exception to
   the hearsay rule. R.801(d)(2)(E)
   Coconspirator exception to the hearsay rule is firmly enough rooted in
   the jurisprudence that court need not independently inquire into
   reliability of such statements.  FRE Rule 801(d)(2)(E)

      In a tape-recorded teleph conversation with FBI informant arranging
to sell cocaine, L, who had agreed earlier to find individuals to
distribute the drug, said he had a "gentleman friend" (petitioner) who had
some questions.  In a subsequent telephone call, the informant spoke to the
"friend" about the drug's quality and the price, and later arranged with L
for the sale in a parking lot, where L would transfer the drug from the
informant's car to the "friend."  The transaction took place as planned,
and the FBI arrested L and D..  At D's trial the Government introduced,
over petitioner's objection, L's telephone statements regarding the
"friend's" participation in the transaction. Court found that, considering
both the events in the parking lot and L's statements, the Government had
established by a preponderance of the evidence that a conspiracy involving.
 L and D existed, that L's statements were made in the course and in
furtherance of the conspiracy, and that the statements thus satisfied
801(d)(2)(E).
      Held:  L's out-of-court statements were properly admitted against D.

11-B-4-2. In Furtherance of the Conspiracy.
US v. Harris: D was convicted of conspiracy to commit mail fraud and he
appealed.  D and 2 other made up an accident and had multiple insurance
policies on this date, and submitted fraudulent claims as a result of
accident. The Crt of App, held, inter alia, that trial court did not err in
admitting statements of an alleged coconspirator before the Government
established a prima facie case of conspiracy by other independent evidence.
Affirmed.
      R, who also made up an accident and was in the hospital with D,W &F,
testified that coconspirator W made statements to him to the effect that
the collision involving D,W,F was staged.
      D alleged that the court: erred in admitting hearsay statements of
the alleged coconspirator which were not "in furtherance of" the
conspiracy.  D admits that the statements made by W were during the course
of the conspiracy, but contends the statements were not “in furtherance of”
the conspiracy and therefore wrongly admitted.
      Held: Both R and W were actively engaged in parallel schemes to
defraud insurance companies.  Their conversation can be viewed as mutual
attempts to gather useful information to further each other’s conspiracy.
      On the other hand, D saying that their conversation was nothing more
than casual admissions of culpability by W to R, who he trusted.
      Court didn’t determine what is the right opinion, b/c even if D’s
position is correct
- the error in the admission in this case would be harmless.

      Statements made in furtherance of unlawful association are not
hearsay and are admissible, provided that concert of action is established
by independent evidence;  such statements may be conditionally admitted
subject to being "connected up" by subsequent independent proof of concert
of action.
      In prosecution for conspiracy to commit mail fraud, statements of
alleged coconspirator, although admitted before Government established
prima facie case of conspiracy by other independent evidence, were later
sufficiently "connected up" by such independent proof.